Koepke v. Dyer

Morse, J. April 4, 1889, the plaintiff filed his declaration against the defendant in the superior court for the city of Grand Bapids, in assumpsit, alleging that on February 19, 1889, he filed with the register of deeds of Kent county a notice of claim of lien for labor performed and materials furnished on and against certain lands in Davis, Turner & Carroll’s addition to the city of Grand Bapids, the true amount of said claim being $113.10, over and above all legal set-offs. He also declared upon all of the common counts. A copy of the declaration and notice of rule to plead was personally served on the defendant in the city of Grand Bapids April 5, 1889. July 1, 1889, his default for want of appearance and pleading was taken, which was made absolute July 8, 1889. July 19, 1889, judgment was taken on this default [312] before the court without a jury for the sum of $113.10, and the said amount declared by said judgment to be a ]ien upon the real estate described in the declaration. Execution was issued on this judgment July 23, 1889. August 7, 1889, the defendant appeared specially by his attorneys, Earle & Hyde, and moved the court to set aside said judgment and execution for various specified reasons. September 9, 1889, this motion was denied. This case is brought here upon writ of error. After the judgment was taken, the mechanics’ lien law of 1887 was declared unconstitutional by this Court. John Spry Lumber Co. v. Loan & Trust Co., 77 Mich. 199; Mellis v. Race, 78 Id. 80; Snell v. Race, Id. 334. All the objections to this judgment in the court below, on motion to set it aside, and all the errors assigned in this Court, are directed against the proceedings to enforce the lien. The declaration upon the common counts and the Tecord will support a personal judgment in assumpsit for fhe amount of $113.10, and there is no reason for setting it aside. Snell v. Race, supra. The execution, however, was directed against the premises upon which the lien was established, and is void and of no effect, and must be set aside. The judgment, in so far as it creates a lien upon the premises, is vacated and set aside, but the personal judgment against the defendant will stand. The defendant will recover his costs in this Court. The other Justices concurred.