Noonan v. Hastings

• Decision Date: 25 May 1897
• Citation: 41 S.W. 32,101 Ky. 312
• Parties: NOONAN v. HASTINGS et al.
• Court: Kentucky Court of Appeals

41 S.W. 32

101 Ky. 312

NOONAN v. HASTINGS et al.

Court of Appeals of Kentucky.

May 25, 1897

Appeal from circuit court, Campbell county.

"To be officially reported."

Action by Charles Noonan against Jerry Hastings and the city of Newport to enforce a mechanic's lien. Judgment for defendants, and plaintiff appeals. Reversed.

Hawkins & Hawkins, for appellant.

Horace W. Root, for appellee city of Newport.

HAZELRIGG, J.

The question involved on this appeal is whether a subcontractor may assert the lien provided for by sections 2463 and 2467, Ky. St., as against public improvements made for a city. It is agreed on all sides that such a lien cannot be enforced by a sale of the property where its use is necessary to the administration of governmental affairs; but this was held in Roe v. Scanlan, 32 S.W. 216, not to prevent the subcontractor from asserting such lien so as to affect and reach moneys in the hands of the county, in lieu of the improvement there involved. In that case the lien was said to attach to the fund in the hands of the county for the construction of a courthouse, and we perceive no reason why the same principle may not be applied in this case. The plain letter of the statute authorizes the filing and assertion of such liens, without regard to whether the building or structure be a private or public work; and, if public policy does forbid the enforcement of the lien by a sale of the property so improved, yet the fund may stand in lieu or instead of the property, and protection be thus afforded subcontractors who give notice, as required by statute, of the delinquencies of the contractor. Here the appellant, Noonan, who was a subcontractor under Hastings, gave notice to the city of his claim; and, under the statute, it was the duty of the city to withhold a sufficient amount to satisfy the claim. The averment of Hastings' pleading is that at that time the city owed the contractor the sum of $3,400 on his contract, while appellant's claim was only the sum of $1,200. The judgment dismissing the appellant's petition is reversed, for proceedings consistent herewith.