McFadden v. Owens

• Decision Date: 10 January 1891
• Citation: 15 S.W. 84,54 Ark. 118
• Parties: MCFADDEN v. OWENS
• Court: Arkansas Supreme Court

15 S.W. 84

54 Ark. 118

MCFADDEN v. OWENS

Supreme Court of Arkansas

January 10, 1891

APPEAL from Jefferson Circuit Court in Chancery, JOHN M. ELLIOTT Judge.

Owens as county judge, let the contract to repair the court house of Jefferson county to Hilliard for a certain sum, the material and work to be paid for by the contractor. Before entering upon the work Hilliard executed to Owens, as such county judge, a bond conditioned that he would deliver possession of the building, upon the completion of the work free from any incumbrance, claim for labor or materials or judgment. Hilliard sublet the woodwork to Jones. Plaintiff McFadden furnished Jones materials which were used on the building. Hilliard refused to pay the bill. It was presented to Owens, as county judge, and he refused to pay it. Plaintiff then filed his complaint against Hillard and Owens as county judge, to restrain the latter from paying the balance due on the contract to Hilliard, who is alleged to be insolvent, and to enforce a lien for the amount claimed on the fund due Hilliard in the hands of Owens, as county judge. A demurrer to the complaint was sustained. Plaintiff appealed and filed a motion in this court for a temporary restraining order pending the appeal.

Motion denied.

H. King White and W. M. Harrison for appellants.

1. As to appellant's right to subrogation, see Sheldon on Subrogation, sees. 1, 11, 222; 16 Ark. 232; 18 id., 508; 31 id., 411; Wood on Ins., title, "Subrogation."

2. Appellants seek no decree or relief against the county--butmerely that the amount of their claims as materialmen be paid to them directly, instead of to Hilliard who is insolvent.

N. T. White, S. M. Taylor and J. W. Crawford for appellee.

If plaintiff has a claim that can be enforced against the county, even by subrogation, then the damage would not be irreparable, and a restraining order should not be granted. Even if plaintiff is without remedy against the county and would lose his debt, still the order should not be granted, if it appears from the record that upon final hearing the decree will have to be affirmed.

Public buildings are not subject to mechanics' liens. Mansf. Dig., sec. 2999; 49 Ark. 97; Phillips on Mech. Liens, secs. 179--179a.

Neither the county or county judge is liable to garnishment. 31 Ark 387; Wade on Att., secs. 422, etc. Insolvency alone will not justify an injunction. High, Inj., secs. 10-18. The doctrine...