A.F. Withrow Lumber Co. v. Glasgow Inv. Co.
| Decision Date | 07 February 1901 |
| Docket Number | 310. |
| Citation | 106 F. 363 |
| Parties | A. F. WITHROW LUMBER CO. v. GLASGOW INV. CO. et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Henry C. Riely and L. L. Lewis (William Leigh and Wingfield Leggett, on brief), for appellant.
John Selden and Greenlee D. Letcher, for appellees.
Before SIMONTON, Circuit Judge, and PURNELL and WADDILL, District judges.
This case is now before the court on a rehearing granted subsequent to the decision on the merits rendered on the 1st of May, 1900. The facts in the case, with the court's reasons for its conclusion will appear from the opinion reported in 42 C.C.A. 61, 101 F. 863. After a careful review of the case, in the light of all the reasons stated in the petition for rehearing and the argument of counsel thereon written and oral, the court feels constrained to adhere to its views heretofore expressed. The weakness of the contention made by the petitioner in the application for rehearing is that the existence of a lien is presupposed. If a lien existed, much that is said would be true; but under the Virginia mechanic's lien law, as has been repeatedly decided by the court of last resort in the state, a lien can only be acquired in the manner prescribed by the statute. The petitioner attempted to perfect its lien as required by the statute, but failed properly to do so; and, the lien not having been thus secured, it is impossible otherwise to set it up. The court cannot, upon the theory of keeping alive a right to secure an inchoate or incipient lien, create one. The decisions as to the effect of the entry of decrees of account, or the institution of suits in equity to administer insolvent or trust estates and the estates of deceased persons, have but little bearing. Petitioner's contention would lead to this result,-- that it would be entirely unnecessary to file a mechanic's lien in any case where a suit was instituted involving the administration of property upon which a lien was sought to be established. This would be a dangerous precedent to set, and would be far-reaching in its effect. While the particular case may be one of hardship, it will not justify the court in departing from well-established legal principles in reaching its conclusion.
It is insisted that such amount as was claimed under the defective mechanic's lien for work done and labor performed after the appointment of a receiver should be allowed as a prior...
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...v. Chicago & E. I. R. Co., 7 Cir., 66 F. 663; Otoe County Nat. Bank v. Delany, 8 Cir., 88 F.2d 238, 250; A. F. Withrow Lumber Co. v. Glasgow Inv. Co., 4 Cir., 106 F. 363; Reece Folding Mach. Co. v. Fenwick, 1 Cir., 140 F. 287, 292. Recognizing that on this record we are not permitted to con......
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In re CA Taylor Logging & Lumber Co.
...Mottet Co., 111 Wash. 564, 191 P. 860; Withrow Lumber Co. v. Glasgow Inv. Co., 101 F. 863, 42 C. C. A. 61; and Withrow Lumber Co. v. Glasgow Inv. Co., 106 F. 363, 45 C. C. A. 321. Certain portions of section 3, chapter 136 of the Laws of 1923, supra, are omitted by the referee in the above ......
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