A. A. Fielder Lumber Co. v. Smith

• Decision Date: 26 October 1912
• Parties: A. A. FIELDER LUMBER CO. et al. v. SMITH et al.
• Court: Texas Court of Appeals

151 S.W. 605

A. A. FIELDER LUMBER CO. et al. v. SMITH et al.

Court of Civil Appeals of Texas. Dallas.

October 26, 1912.

On Rehearing, November 23, 1912.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by the A. A. Fielder Lumber Company against Nellie Snyder Smith and others. From a judgment against Nellie Smith and her husband declaring priorities against a certain fund, the Fielder Lumber Company and others appeal. Affirmed in part, and reversed and rendered in part.

Head, Smith, Hare & Head, J. H. Wood, and J. T. Cunningham, all of Sherman, and Holloway & Holloway, of Dallas, for appellants. McReynolds & Hay and Abney & Hassell, all of Sherman, and Edward P. Dougherty, of Dallas, for appellees.

RASBURY, J.

Nellie Snyder Smith and her husband, B. L. Smith, contracted with the school trustees of Van Alstyne independent school district of Grayson county to furnish all material and labor necessary to build and complete a public school building in the town of Van Alstyne according to certain plans and specifications prepared by John Tulloch, architect, and under his supervision. The consideration to be paid the contractors was $11,000, payments upon which amount were to be made every two weeks upon estimates of the architect, as the work progressed. During the progress of the work the appellant Fielder Lumber Company filed suit in the district court against Nellie S. Smith and B. L. Smith, and against Messrs. McKinney, Howle, Henderson, Umphress, Cartwright, Sheridan, and McDonough, trustees of the public schools of Van Alstyne. The Van Alstyne Lumber Company, W. F. Barnett, Mosher Manufacturing Company, Continental State Bank, and Palmer Pressed Brick Works were also made defendants. J. G. Knappie and M. F. Dougherty & Son intervened in the suit. Appellant Fielder Lumber Company alleged that it sold and delivered to Nellie S. Smith and B. L. Smith certain lumber and building material upon which there was a balance due of $2,335.08, which was used by them in constructing a school building owned by the trustees of the public schools of the town of Van Alstyne; also alleged that, within the time and manner provided by law, it fixed and secured the statutory materialman's lien on said school building and the lot of land upon which it stood, at which time there was in the hands of the trustees $2,200 to be used in the construction of said building, and sought appropriate relief by foreclosure and sale or a direction by the court to the school trustees to pay the debt from the funds in their possession belonging to said Smiths, and asserted that, if not entitled to the materialman's lien, it was in equity entitled to payment from the funds because of the notice given and the material furnished. The school trustees answered admitting the contract with the Smiths, disputed the legal right of Fielder Lumber Company to fix a lien on the school building since by law such lien was void as against public policy, claimed that all money due on the contract had been paid to the contractors except $2,138, which was by the contract reserved until final completion and acceptance of the building by the architect; that the other defendants and the interveners were claiming prior and superior rights to the fund, and that they were unable to determine to whom payment should be made; they tendered the money in their possession into court, and asked that it be paid to whomever was entitled thereto. Appellant Palmer Pressed Brick Works, in like manner with appellant Fielder Lumber Company, established, within the time and manner provided by law, the statutory materialman's lien on the school building and land, and asserted as well a superior equitable lien upon the funds in the hands of the trustees independent of the statutory lien based upon notice to the trustees of the furnishing of material with which to construct said building.

We shall not attempt to give in detail the pleadings of the other defendants and interveners for the reason that no issue is made upon the sufficiency thereof. Their claims to the fund in the hands of the trustees rest upon assignments from the contractors properly urged in their pleading. The case was tried without the intervention of a jury, and the case is here upon findings of fact and conclusions of law prepared by the trial judge. By its decree the trial court entered judgment in favor of all parties to this appeal against B. L. Smith for the amounts of their respective claims. The school trustees were directed to retain from the fund in their hands $202 with which to complete the building, and to pay the balance of $1,936 into the registry of the court. The court further decreed that appellants Fielder Lumber Company and Palmer Pressed Brick Works acquired no lien either upon the school building and land or the fund in the hands of the trustees, and that the assignment given Mosher Manufacturing Company was insufficient in law to constitute a transfer or assignment of part of the fund due the contractors or create any interest therein. The money tendered into court was directed to be paid as hereafter shown and to the exclusion of any participation therein by appellants, Fielder Lumber Company, Palmer Pressed Brick Works, and Mosher Manufacturing Company. From that judgment, the last three named have appealed.

It would consume too much time to consider separately the counter propositions of each appellee to the propositions of appellants, Fielder Lumber Company, Palmer Pressed Brick Works, and Mosher Manufacturing Company, and we shall not attempt to do so, but content ourselves by a careful consideration of each. This brings us to a consideration of the proposition asserted by appellant Fielder Lumber Company under its first assignment of error; and that of the Palmer Pressed Brick Works asserted, under its second assignment of error, that giving notice of their accounts to the school trustees and filing same for record with the county clerk as required by article 5623, Rev. Civ. St. 1911 (being the notice provided to be given as a preliminary to fixing the statutory materialman's lien), had the effect to garnish the unincumbered and unexpended funds in the hands of the school trustees, and subjected same to the payment of appellant's debts. In the well-prepared and excellent brief of counsel for appellant Fielder Lumber Company, it is conceded that, by statute and decision, liens for material, labor, etc., are not permitted to be established against the state's public buildings. The reason and policy of this rule is too well known to require a discussion of the same by us, and we content ourselves by reference to the authorities quoted by counsel for appellant. Article 2845, R. S. 1911; Atascosa County v. Angus, 83 Tex. 202, 18 S. W. 563, 29 Am. St. Rep. 637; Dallas v. Loonie, 83 Tex. 291, 18 S. W. 726.

But it is contended by counsel that section 37, art. 16, of the Constitution, which declares that "* * * materialmen of every class shall have a lien upon the buildings and articles made or repaired by them for * * * material furnished," evidences the intention of the framers of the Constitution to favor those creditors whose material goes into the actual construction of a building, and that hence, while the notice and subsequent proceedings were ineffectual to establish the statutory lien, in equity such notice was a garnishment of the fund and would give appellant's claim precedence over subsequent assignments by the contractors in the same manner that service of a statutory writ of garnishment would when such writs are available. We do not believe the statutes and decisions of our courts are susceptible of such a construction. It is true that the courts, in discussing and construing the statutory provisions enacted under article 16, § 37, of the Constitution, providing for the speedy and efficient enforcement of the lien provided for by the Constitution, have used the expression that such liens, when established in the manner provided by law, operate to garnish any money in the hands of the owner of the land and building. Nothing more, however, could be meant by such expression than that the owner of the building, in the event he paid out the money to some subsequent claimant, would be in a similar attitude that a defendant in statutory garnishment would be who paid out money to a subsequent claimant after service of the writ. We are confirmed in this conclusion by the fact that the mechanic's lien law fixes a lien, not upon any money in the hands of the owner of the building and land, but upon the land and building, and he may do with the fund as he pleases, subject to the right of the lienholder to be reimbursed by the owner to the amount of his claim or the extent of the fund in the hands of the owner on a foreclosure of his lien and a sale of the property. Texas Builders' Supply Co. v. National Loan & Inv. Co., 22 Tex. Civ. App. 349, 54 S. W. 1059; Fullenwider v. Longmoor, 73 Tex. 480, 11 S. W. 500. We think the most that can be claimed under the steps taken by appellants Fielder Lumber Company and Palmer Pressed Brick Works, since a lien cannot be established against the school land and buildings, is that the trustees of the school had actual notice that the contractors owed them for material which went into the building at a time when the trustees had funds in their possession due the contractors. But in our opinion such facts do not establish any right in appellants whatever to the fund, legal or equitable. We agree that in this case the situation is difficult and unequal for appellants, but the correction lies with the Legislature rather than with the courts. Herring-Hall-Marvin Co. v. Kroeger et al., 23 Tex. Civ. App. 672, 57 S. W. 980. What we have said above disposes of the right of appellants Fielder Lumber Company and Palmer Pressed Brick Company to any priority of right to the fund in the hands of the trustees. We will discuss the other proposi...