Dimmick v. Hinkley

• Decision Date: 20 June 1882
• Parties: DIMMICK v. HINKLEY ET AL
• Court: Iowa Supreme Court

9 N.W. 386

57 Iowa 757

DIMMICK v. HINKLEY ET AL

Supreme Court of Iowa, Des Moines

June 20, 1882

Appeal from Johnson Circuit Court.

THE plaintiff furnished to the defendants certain materials with which to erect a building upon premises owned by the defendant, Harriet M. Hinkley. The last item of said material was furnished March 30, 1876. The statement for a mechanic's lien was filed in the office of the clerk of the District Court, December 28, 1878. This action was brought March 6, 1879, to obtain judgment, and enforce a mechanic's lien for the amount due for said materials.

The defendants pleaded the statute of limitations. The cause was referred to a referee, who found that the lien was not barred. The Circuit Court, upon exceptions filed, set aside that part of the report, and held that the lien was barred. Plaintiff appeals.

AFFIRMED.

Bonorden & Ranck, for appellants.

Edmonds & Hindman and Slater & Ewing, for appellees.

OPINION

ROTHROCK, J.

The sole question to be determined is, was the right to enforce the mechanic's lien barred by the statute of limitations. The precise question involved was determined by this court in Squier v. Parks, 56 Iowa 407, 9 N.W. 324. Following that case the judgment herein must be

AFFIRMED.

ON REHEARING.

ROTHROCK J.

Counsel for appellant, in a petition for rehearing, insist that the question in this case is different from that involved in Squier v. Park, 56 Iowa 407 because in that case the contest was between the holder of the mechanic's lien and a mortgagee of the owner of the land, while in this case, the controversy is between the holder of the mechanic's lien and the owner of the land. Counsel say they want a construction of section 2137 of the Code, or rather that part of it which provides that a failure or omission to file the lien within the time fixed shall not defeat the lien, "except against purchasers or encumbrancers in good faith without notice, whose rights accrued after the thirty or ninety days, as the case may be and before any claim for a lien was filed." If a little attention had been given to the statement of facts in the case of Squier v. Parks, supra, it would have been seen that while it is true the plaintiffs in that case were mortgagees, their mortgage was executed before the material was furnished which was the basis of the mechanic's lien. They are, therefore, not within the exception of the statute, and so far as the...