Snow v. Council

Crawford, Justice. The plaintiff in error, claiming to have as a laborer a general lien against all the property of the defendant in error under section 1974 of the Code, proceeded before the ordinary to foreclose the same by making the usual oath for the enforcement of liens against personalty, and further claiming in his affidavit, that his lien extended not only to all the personal property but the land as well, ■ and prayed an execution against the same. Upon the affidavit so made and filed in the office of the clerk of the superior court, that officer issued a fi. fa. directing its levy upon the goods and chattels, lands and tenements of the defendant for the sum sworn to and costs. The same being levied by the sheriff, it was arrested by affidavit of illegality and returned to the succeeding term of the superior court, where the illegality was sustained and the levy dismissed, because the proceeding was not in conformity with the law authorizing the enforcement of liens upon realty, but informal and illegal. To this ruling and judgment of the court the plaintiff excepted, and assigns the same as error. A lien against real estate to be made operative and ef [124] fective, must, be recorded within three months after the completion of the work, in the office of the clerk of the superior court of the county where the land is situated. When so filed and recorded the action for the money must be commenced within twelve months from the time the same is due, and in declaring for such a debt the claimant must set forth his lien and the premises on which he claims it, the verdict must set it forth and the judgment and execution awarded accordingly The plaintiff below under his pleadings showed that he had no such standing in court, and was properly dismissed therefrom with costs. A statutory right, with a summary remedy to enforce it, must be followed strictly to be made available, and when done otherwise, it wants legal sanction and is without legal effect. Judgment affirmed.