Dutton v. Herman

Ellison, J. It will be noticed from the statement that plaintiff purchased from Bartlett before the nunc pro tunc entry, and more than three years after the rendition of the judgment on the mechanic’s lien. The main question presented by counsel is, does a mechanic’s lien, as such, continue after the rendition of a judgment upon it ? In other words, is it merged in the judgment ? We prefer to confine our opinion to the case before us, and not go into the general question until the necessity for such examination shall arise from the record. [462] In order that there be a merger of the lien into the judgment, such judgment must be a valid one, one that may ,'foe enforced. Freeman on Judgments, sect. 218 ; Wixom ,et al. v. Stephens et al., 17 Mich. 518. Judge Cooley says, in the case cited, that: “ If, by reason of the mistake, 'the judgment rendered by the justice was not valid, so that the plaintiffs could enforce it, then it would seem that it could not constitute a bar to a Sew suit on the note. The bar, in such case, springs from the party having already obtained a higher security; and where he has got no new security, his remedy, upon the original -demand, is not taken away.” In the case before us, the judgment was invalid. It could not be enforced, for the whole record showed it to have been entered against property not included in the petition or proceedings. The subject matter of the suit, then, i. e., the lien, did •not merge in the judgment entered by mistake. The .lien retained its specific character, at least, till a proper judgment was entered. Whether after a proper judgment need not be considered. The proceedings, beginning -with the filing of the lien on down to the judgment, were regular as provided by law. The suit having been instituted within the time prescribed by statute, after filing the lien, such lien continued in force, at least, until the lien of the judgment began. It follows that the judgment should be reversed. The other judges concur.