Durkee v. Koehler

• Decision Date: 17 May 1905
• Docket Number: 13,796
• Citation: 103 N.W. 767,73 Neb. 833
• Parties: CHARLES T. DURKEE v. GUSTAVE KOEHLER
• Court: Nebraska Supreme Court

103 N.W. 767

73 Neb. 833

CHARLES T. DURKEE v. GUSTAVE KOEHLER

No. 13,796

Supreme Court of Nebraska

May 17, 1905

ERROR to the district court for Hall county: JOHN R. THOMPSON JUDGE. Reversed with directions.

REVERSED.

F Dolezal, for plaintiff in error.

W. H Thompson, contra.

DUFFIE, C. ALBERT and JACKSON, CC., concur.

OPINION

DUFFIE, C.

In an action to foreclose a mortgage on what is known as the Koehler Hotel property in the city of Grand Island, Charles T. Durkee and more than twenty other lienholders were made parties defendant. Durkee filed an answer and cross-petition showing that he had furnished certain material and done labor in the erection of the hotel, and had taken the necessary steps to secure a mechanic's lien therefor. He asked that the amount due him be ascertained; that the property be sold and the proceeds applied to the satisfaction of his lien, and that he have personal judgment for any deficiency. A decree was entered in the case on February 29, 1896, which, among other things, established the lien of Durkee, but placed him in the third class. An appeal was taken, and the judgment of the district court affirmed. See Grand Island Banking Co. v. Koehler, 57 Neb. 649, 78 N.W. 265. The decree of the district court did not contain any finding on the question of the right of any of the lienholders to a personal judgment against Koehler in case of a deficiency, and but two or three of the lienholders asked for such a finding. The property was sold June 14, 1900, and the proceeds of the sale distributed among the lienholders having priority over Durkee. The sale was confirmed June 30, 1900, and on October 31, 1902, Durkee filed a motion for a deficiency judgment, which was overruled by the court by an order entered December 14, 1903, from which order Durkee has appealed to this court.

It is insisted by the appellee, and the district court apparently proceeded upon the theory, that a deficiency judgment could not be entered against the owner of the property upon the foreclosure of a mechanic's lien by action brought upon the chancery side of the docket. It is said in brief of appellee that "our statute governing mechanics' liens provides but two modes of enforcement: First, under section four, to obtain a judgment on the account in civil action, continuing the lien and sequestering, by reason thereof, the rents and profits of the lands; and, second, by a petition in chancery as in other cases of liens; that, the plaintiff in error having elected to pursue the course in chancery, he is not entitled to a personal judgment against the defendant, but simply to a decree finding the amount due, ordering a sale of the property, and application of the proceeds, as is the practice in such courts." We are not inclined to agree with the appellee in this position. An examination of the statute relating to mechanics' liens clearly shows, as we think, the intention of the legislature to allow a personal judgment against the owner of the property on which the lien is claimed for the amount due upon the account of the lienholder, whatever the proceedings taken to enforce the lien.

Section 1, article I, chapter 54, Compiled Statutes, 1903 (Ann. St. 7100), the act giving mechanics' and laborers' liens, defines who are entitled thereto and for what a lien may be claimed. Sections 2 and 3 provide the proceedings to secure a lien. Section 4 is as follows: "Every person holding any lien under this chapter may proceed to obtain a judgment for the amount of his account thereon by civil action. And when any suit or suits shall be commenced on such accounts within the time of such lien, the lien shall continue until such suit be finally determined and satisfied." When we consider that courts of equity have no power to enforce this statutory lien unless expressly authorized by law, or unless, perhaps, there exists some impediment or difficulty which would render the remedy given by the statute unavailing, it seems to us clear that section 4 was designed by the legislature as one of the methods of enforcing the lien given by the statute and by a sale of the property. The general rule is that when, by the statute, a new right is given and a specific remedy provided, or a new power and also the means of executing it are provided by statute, the power can be executed and the right vindicated in no other way than that prescribed by the statute. Coleman v. Freeman, 3 Ga. 137; Quimby v. Sloan, 2 E. D. Smith (N.Y.) 594, 615; Otley v. Haviland, 36 Miss. 19; Phillips, Mechanics' Liens (3d ed.), sec. 2.

A statute of Wisconsin, substantially like section 4, was given this construction by the supreme court of that state in Dewey v. Fifield, 2 Wis. 73. The court said:

"The statute under which the suit was brought, creates a lien upon any building erected, in favor of any person who shall perform labor upon it, or who shall furnish materials used in its construction, and provides a mode in which the lien can be enforced. The statute also creates a lien upon the interest of the owner of the building in the land upon which it is situated, not exceeding one acre, if within the limits of any city, town or village plat, and not exceeding forty acres, if without those limits. In order to enforce the lien, a 'petition or claim for the same' must be filed, and an action instituted within one year from the time the work was done, or the materials were provided. The 8th section of chapter 120, above referred to, is as follows: 'In all cases of lien created by this act, the person having a claim filed in accordance with its provisions, may proceed to recover it by personal action against the debtor, his executors or administrators, or, when the plaintiff is a subcontractor, by a scire facias against the owner of the building.' In this case, the plaintiff brought an action against the debtor, who was the owner of the dwelling house. By the words 'personal action,' as used in the section of the statute above quoted, we do not suppose the ordinary action in personam for recovery of a sum of money or damages, against the debtor, is intended, because such an action is not at all calculated to give the plaintiff the relief which the statute provides. The judgment in such an action would bind the real estate of the debtor only from the time it was rendered, whereas he seeks to make the building, and the interest of the owner of it in the land upon which it is situated, liable from the time the labor was performed, or the materials were provided. But we think that while the action is personal, it must be adapted...