Dion v. Powers

• Decision Date: 20 January 1880
• Citation: 128 Mass. 192
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Abraham Dion & another v. Jeffrey Powers

128 Mass. 192

Abraham Dion & another v. Jeffrey Powers

Supreme Court of Massachusetts

January 20, 1880

Argued October 29, 1879

Bristol. Petition to the Second District Court of Bristol to enforce a mechanic's lien. The Fall River Savings Bank mortgagee of the premises on which the lien was claimed appeared and filed a motion alleging that the title to real estate was brought in question and praying for a removal of the cause to the Superior Court under the Gen. Sts. c. 120 § 13; which motion was granted.

At the trial in the Superior Court, without a jury, Brigham, C. J., found that the sole cause of removal from the District Court was the fact that the above-named corporation held a mortgage upon the premises which were subject to the petitioners' lien; and ruled that the Gen. Sts. c. 120, § 13, applied only to common-law actions, and not to proceedings to enforce statutory liens, and that, if the above statute applied to cases of liens, the fact that a mortgage existed on the premises subject to the lien did not raise such a question of title to real estate as to give cause for a removal under the above statute.

The petitioners contended that the question was whether the mortgage should take precedence of the lien, and, on that account, there was a question of title to real estate involved; and that the Superior Court had jurisdiction of the cause. But the judge ruled that said court had not jurisdiction of the cause, because the granting of the motion for removal by the District Court was erroneous. The petitioners thereupon moved that the cause be remanded to the District Court. But the judge ruled that he had no power so to remand it; and ordered that the petition be dismissed. The petitioners alleged exceptions.

Exceptions sustained.

H. A. Dubuque, for the petitioners.

H. K. Braley, for the respondent.

Soule J. Colt & Ames, JJ., absent.

OPINION

Soule, J.

The petitioners rely on the provisions of the Gen. Sts c. 120, § 13, as containing authority for the removal of their petition from the District Court to the Superior Court. But it is to be observed that the mechanic's lien is not a common-law right, and that the proceedings for its enforcement are peculiar. All of the provisions of the General Statutes relating thereto are contained in c. 150. Section 8 provides that the lien may be enforced by petition to the Superior Court. Section 9 provides that, "when the amount of the claim does not exceed one hundred dollars, the lien may be enforced by petition to a justice of the peace, or police court." These are the only provisions by which jurisdiction of such petitions is given in express terms to any tribunal. The Second District Court of Bristol has the same jurisdiction with police c...