Fowler & Guy v. Pompelly

• Decision Date: 13 October 1903
• Citation: 76 S.W. 173
• Parties: FOWLER & GUY v. POMPELLY.
• Court: Kentucky Court of Appeals

76 S.W. 173

FOWLER & GUY v. POMPELLY.

Court of Appeals of Kentucky.

October 13, 1903

Appeal from Circuit Court, Mason County.

"Not to be officially reported."

Action by Fowler & Guy against A. A. Pompelly. From a judgment of dismissal, plaintiffs appeal. Reversed.

A. E Cole & Son, for appellants.

W. D Cochran, for appellee.

NUNN J.

It appears from this record that appellants are endeavoring to enforce a lien under the mechanic's lien law for the sum of $90 against appellee's property. The lower court dismissed their action, and they have appealed from that judgment. Appellee moves to dismiss this appeal, claiming that this court has not jurisdiction because the amount in controversy is less than $200. Under the recent decisions of this court, we cannot sustain appellee's contention. In the case of Smith's Adm'r v. Catlin, etc. (Ky.) 63 S.W. 473, the court said: "The amount sought to be recovered is $199.50, with interest, and to pay which a lien is asserted upon a certain parcel of land, and asked to be enforced. It is insisted that the court has no jurisdiction of the claim because the amount in controversy is less than $200, exclusive of interest and cost. Some cases are cited which support the contention of counsel for appellee that the fact that a lien is asserted on land, or has been adjudged against it, will not give this court jurisdiction where the amount sought to be recovered or adjudged is less than the minimum amount of which this court has jurisdiction. The opinions relied on are principally by the superior court. This court has been uniformly holding for a number of years that where a lien is asserted on land, the title to it is brought in controversy, and the court has jurisdiction, regardless of the amount of the claim asserted or adjudged. Whether the court was in error in so holding it is too late now to consider." There are several other cases to the same effect, one or more of which was where there was an attempt to enforce mechanics' liens.

The only contention made by counsel for appellee in his brief for an affirmance of this case was that the claim of appellants was for hauling material to be used, and which was used, in the erection of appellee's house, and that for such labor there is no lien given, under section 2463 of the Kentucky Statutes of 1899. That section, in so far as it is necessary to quote, is as follows: "A person who performs labor or furnishes...