Loring & Co. v. Small

Day, J. i. .MECHAjsric’s lien: "bridges: practice. The mode of enforcing a mechanic’s lien is by suit in the District or Circuit Court, and execution for the sale of the property upon which the lien is established. Code, §§ 2140, 2141 and 2142. The Code contains the . . following provisions: Section 3048. Public buildings owned by the state, or any county, city, school district, or other municipal corporation, or any other public property [274] which is necessary and proper for carrying out the general purpose for which such corporation is organized, are exempt from execution. * * * * 3049. If no property of a municipal corporation, against which execution has issued, can be found, * * * a tax must be levied as early as practicable to pay off the judgment. * * * * * ” The opinion of the Supreme Court of Illinois in Bouton et al. v. Board of Supervisors of McDonough County, 5 Central Law Journal, 105 (108), is so applicable to every feature of this .ca'se that we quote therefrom, and adopt the views .therein expressed as our views of this case. In that case it is said: “The further and last ground of claim is that of a mechanic’s lien, in the court-house property, as sub-contractors. By statute an execution cannot issue against the lands or other property of any county of this State. Revised Statutes 1845, p. 133. * * * * * * * *' * * * * * The mechanic’s lien law is framed with reference to such property as is subject to be sold under execution. The method which is provided for the enforcement of the lien it gives is by sale upon execution of the property to which the lien attaches for its satisfaction. As to the property which is exempted by law from sale on execution the lien law is incapable of enforcement; and its provisions as respects such are nugatory, and are entirely inapplicable. We hold that the property in question does not come within the purview of the mechanic’s lien law, and that no such lien can attach thereto.” A like decision in reference to such property was made in Wilson v. Commissioners of Huntington County, 7 Watts & Serg., 197. In Board of Education v. Neidenburger, 78 Ill., 58, such a lien was held not to attach to a school-house. In that ease the court say: “The suggestion is made that the court may in such case apply and carry out the provisions of the lien law so far as to pass a decree for the money due, and stop with that, not ordering any sale of the property. But the statute does not contemplate that there shall be any such thing- as a personal decree [275] alone. The decree rendered may operate as such, so far as respects any deficiency, after there has been a sale upon execution of the property subject to the lien, and it fails to satisfy the amount found due. The statute, by all its provisions, is only intended to apply and have operation as respects property which may be and is to be sold on execution. We •cannot mould the statute to subserve a purpose for which it was never designed. ” Precisely the same suggestion as was made in the above case is made in the case at bar. The answer to the suggestion above contained is satisfactory and complete. We feel no hesitancy in holding that the property in question in this ease cannot be made subject to a mechanic’s lien, in view of the statute which exempts it from execution. See, also, Quinn v. Allen and The Board of School Directors, 5 Central Law Journal, 271 Aeeirmed.