Hopper v. Lincoln

CourtSupreme Court of Hawai'i
Writing for the CourtOPINION OF THE COURT BY FREAR
Citation12 Haw. 352
Decision Date04 May 1900
PartiesJ. A. HOPPER, DOING BUSINESS UNDER THE NAME OF THE PACIFIC BRASS FOUNDRY, v. G. W. LINCOLN AND H. E. COOPER.

12 Haw. 352

J. A. HOPPER, DOING BUSINESS UNDER THE NAME OF THE PACIFIC BRASS FOUNDRY,
v.
G. W. LINCOLN AND H. E. COOPER.

Supreme Court of the Republic of Hawai‘i.

Submitted October 4, 1899.
Decided May 4, 1900.


EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.

Syllabus by the Court

Under our mechanic's lien law, the owner of the property upon which a lien is claimed is a necessary party defendant in an action by a subcontractor to enforce the lien, and a special execution may issue upon a judgment for the enforcement of the lien against the property covered by it, even though judgment cannot be entered against the owner personally.

Kinney, Ballou & McClanahan for the plaintiff.


H. E. Cooper for himself, Magoon & Silliman with him.

FREAR AND WHITING, JJ., AND CIRCUIT JUDGE STANLEY IN PLACE OF JUDD., C.J., ABSENT.

OPINION OF THE COURT BY FREAR, J.

This action by a subcontractor for $312.98 against defendant Lincoln personally, the principal contractor, and defendant Cooper, the owner, for the enforcement of a lien under the mechanic's lien law, was tried jury waived and, by consent, judgment was ordered for the plaintiff for $341.98, including interest and costs, against Lincoln personally and against Cooper for the enforcement of the lien, without prejudice to the right of the latter to contest the enforcement of the lien by execution.

The only question raised by the exceptions is whether an execution could properly issue upon a judgment for the enforcement of the lien against the property covered by it. It is contended that the statute is deficient in failing to provide proper machinery for the enforcement of a lien and that no valid execution can issue upon a judgment for the enforcement of a lien against the owner in favor of a subcontractor, although it might

[12 Haw. 353]

in cases where the owner himself has contracted for the materials or labor.

The statute (Civ. L. Sec. 1745) provides: “The liens hereby provided may *** be enforced by proceedings in and Court of competent jurisdiction, by service of summons, as now practiced. Such summons shall set forth the ordinary allegations in assumpsit, and, in addition thereto, note that a lien has been filed. *** Judgment upon such proceedings shall be as in ordinary cases, and may be enforced by execution as now alleged. In case the contract for services or material upon which the lien has accrued shall have been directly with the owner of the property, an attachment may issue in connection with the suit. ***”

The statute contemplates an enforcement of the lien by an action at law. If the action were by a principal contractor against the owner, there could be no difficulty, for “the ordinary allegations in assumpsit” could be made and a judgment be obtained against the owner personally on the contract. But when, as here, the action is by a subcontractor, the ordinary allegations in assumpsit...

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