N.O. Nelson Mfg. Co. v. County Board of Education

• Decision Date: 11 January 1934
• Docket Number: 5 Div. 165.
• Citation: 228 Ala. 45,152 So. 221
• Parties: N. O. NELSON MFG. CO. v. COUNTY BOARD OF EDUCATION et al.
• Court: Alabama Supreme Court

152 So. 221

228 Ala. 45

N. O. NELSON MFG. CO. v. COUNTY BOARD OF EDUCATION et al.

5 Div. 165.

Supreme Court of Alabama

January 11, 1934

Appeal from Circuit Court, Tallapoosa County; C. H. Vann, Judge.

Bill by the N. O. Nelson Manufacturing Company against the County Board of Education of Tallapoosa County, Walter Strother, R A. Whitten, T. C. Acree, and Clyde Acree, to enjoin payment of balance due contractor for erection of a school building and to have declared and enforced a lien against such balance. From a decree sustaining a demurrer to the bill complainant appeals.

Affirmed.

Albert Hooton, of Dadeville, and Richard H. Cocke, of Alexander City, for appellant.

Jas. W Strother, of Dadeville, for appellees.

GARDNER Justice.

A certain school building was erected under a contract between one Strother and the county board of education of Tallapoosa county, and complainant alleges that it furnished to R. A Whitten, a subcontractor, plumbing and heating fixtures for said building, and for which payment has not been made.

Based upon the broad ground of public policy, the decisions are to the effect that mechanic lien laws do not apply to public buildings. Scruggs & Echols v. City of Decatur, 155 Ala. 616, 46 So. 989; Martin v. Holtville High School Bldg., 226 Ala. 45, 145 So. 491; 40 C.J. 58.

Complainant, recognizing this well-settled rule, makes no effort to have declared and enforced a lien on the property, but seeks to reach a balance due by the county board of education to the original contractor Strother. But in Nunnally v. Dorand, 110 Ala. 539, 18 So. 5, it was noted that, under the statute then in force, one who furnishes material to a subcontractor is given no lien on any unpaid balance due the original contractor by the owner. This hardship of the statute has not been remedied by subsequent legislation, as our present statute (section 8832, Code 1923) in the respect here indicated is substantially the same as that considered in the Nunnally Case, supra.

It must follow, therefore, that complainant shows neither a lien on the property nor on the unpaid balance.

While in the conclusion of the opinion in the Nunnally Case, supra, there is an expression, entirely aside from the decided question, indicating some available remedy in a court of equity, yet that matter was given no consideration, and no intimation is therein contained upon what theory such a remedy, if any, might exist. "A lien of this character is of peculiar statutory creation, and, as said in Copeland v. Kehoe & Ramsey, 67 Ala. 594, 'founded and circumscribed by the terms of its creation, and the courts are powerless to take it up where the statute may leave it, and extend it to meet facts and circumstances, which they may believe present a case of equal merit, or a necessity of the same kind, as the cases or necessities for which the statute provides."' First Col. Cumberland Presbyterian Church v. W. D. Wood Lumber Co., 205 Ala. 442, 88 So. 433, 434.

If complainant is without a lien, a mere change of forum, as a transfer to the equity docket, could not serve to supply the deficiency.

But counsel argue the bill shows a right of complainant to be subrogated to the claims of the original contractor to the unpaid balance so far as necessary to satisfy its demands. It has been well said that the doctrine of subrogation has its sphere of relief plainly limited by its nature, and cannot be considered a universal remedy for parties who have lost their money....