Riggin v. Hilliard

• Decision Date: 22 October 1892
• Citation: 20 S.W. 402,56 Ark. 476
• Parties: RIGGIN v. HILLIARD
• Court: Arkansas Supreme Court

20 S.W. 402

56 Ark. 476

RIGGIN v. HILLIARD

Supreme Court of Arkansas

October 22, 1892

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

STATEMENT BY THE COURT.

The appellant filed his complaint against Hilliard, and against Owen as county judge of Jefferson county, alleging, to quote from the appellant's abstract, the following state of facts: "Owen as county judge of Jefferson county entered into a written contract with Hilliard for repairing and reconstructing the court-house of said county, according to which Hilliard was, at his cost, to repair and reconstruct the building and to furnish all material used in the work for which the county was to pay him $ 21,700, payments to be made as the work progressed, but 15 per cent of each monthly estimate of the work done and the materials used was to be reserved and held back until ten days after the completion of the building.

"Hilliard was personally to superintend the execution of the work, and was not to assign any part of the contract without the consent in writing of Owen, which consent was never given and he executed a bond to Owen, as such county judge, with sureties, conditioned, among other things, that upon the completion of the building he would deliver possession of it free from any incumbrance or claim for labor or materials.

"Hilliard employed W. Fleet Jones to do the carpenter's work, and the plaintiff, in accordance with an agreement with Hilliard and upon his promise to pay him for the same, furnished part of the material used by Jones, and as the materials were furnished he presented the bills therefor, certified to be correct by Jones, to Hilliard, and he paid him 85 per cent of the several amounts, except the last estimate, of which he paid no part, leaving an aggregate amount due the plaintiff of $ 419.40, which Hilliard, after the completion of the building, refused to pay."

It was further alleged that Hilliard was insolvent, and that the plaintiff would be wholly defeated in the collection Of his claim unless he could collect it out of the fund in the hands of the county judge.

The prayer was for a personal judgment against Hilliard; for a decree declaring a lien on the fund in the hands of the county judge to the amount of plaintiff's demand, for a restraining order against the county judge prohibiting him from paying to Hilliard the fund claimed by plaintiff, and for general relief. The court issued the restraining order Hilliard interposed a general demurrer to the complaint, which was sustained by the court; the restraining order was dissolved; the plaintiff rested, and the complaint was dismissed.

A motion to reinstate the injunction against the county judge pendente lite was made here when the appeals were perfected, but the relief was denied upon grounds that do not affect the questions now presented. See McFadden v. Owens, 54 Ark. 118.

Judgment reversed and cause remanded.

W. T. Woolridge and W. M. Harrison for appellant.

Appellants have an equitable lien on the funds appropriated by the county court and have a right to be subrogated to the extent of the balance due Hilliard. Story, Eq. secs. 506, 1201, 1207 a, 1217, 1219, 1231, 1232, 1235, 1237; Bisph. Eq. sec. 351; 31 Ark. 387; See Sheldon on Subrogation, secs. 1, 11, 222; Pomeroy's Equity, secs. 186, 1400, 1416, 1419; Harris on Subrogation, §§ 1, 22; Wood on Insurance, Title, "Subrogation"; Story, Eq. sec. 499; 16 Ark. 232; 18 Ark. 86; ib. 508; 31 Ark. 411; 35 Penn. St. 111, 117; 2 Dev. Eq. 147.

Met L. Jones also for appellant.

The complaint is good as a creditor's bill, either under general equity jurisprudence, or the act of March 31, 1887. The object is to reach equitable interests not subject to levy or garnishment or sale at law. Pom. Eq. sec. 1415; 20 Johns. 554; 10 Md. 466; 10 Gill. & J. 226. It is not now necessary to proceed to judgment, before filing a creditor's bill. Act March 31, 1887; 4 Jones, Eq. 352; 46 Mo. 95. See also 128 U.S. 105.

N. T. White and Crawford & Taylor for appellee.

1. Appellants had no lien on the court house, or the funds in the hands of the county judge. 49 Ark. 94; Phillips on Mech Liens, sec. 179, 179 a; Mansf. Dig. sec. 2999; 60 Pa. 27; 105 N.Y. 139.

2. The county cannot be garnished. 51 Ark. 387.

3. No case of subrogation is made. Sheldon on Subrogation, sec. 3 and cases.

4. Appellants were not a party to the contract or bond, and have no right to sue upon it. 53 Ark. 503; 54 id. 424.

OPINION

COCKRILL, C. J., after stating the facts as above set out.

It is conceded that the court-house is exempt from the operation of the statute governing mechanic's liens, and that the statute does not create any claim or lien in appellant's favor upon the fund which the county has set apart to pay for the repairs.

The contention is that the appellant shows a right to equitable subrogation to the right of Hilliard to proceed against the county for the collection of an amount equal to his claim against Hilliard. But the relation of the parties to each other is not such as to invoke the application of that doctrine.

The appellant, according to his allegations, has sold to the appellee, upon his personal credit alone, materials to be used in repairing a court-house.

In the absence of a statute giving him a lien, he is in better condition than if he had loaned the contractor money to carry out his contract with the county in making the repairs; but it is settled that the loan of money to a debtor to discharge his obligation does not entitle the lender to be subrogated to securities which the creditor held for the enforcement of the obligation. Rodman v. Sanders, 44 Ark. 504; Kline v. Ragland, 47 Ark. 111; Steamboat White v. Levy, 10 Ark. 411; Sheldon on Subrogation, § 243.

If there had been an agreement between the parties that the plaintiff should receive pay for his materials from the county out of the fund due Hilliard, the contractor, for repairs, or if the agreement could be implied from the conduct of the parties, the plaintiff would be entitled to subrogation by reason of his contract; but that would be conventional subrogation, which is more nearly akin to assignment than to subrogation by operation of law. There is no allegation in the complaint that there was an agreement between the appellant and Hilliard for subrogation. No foundation is laid therefore for conventional subrogation.

The claim of one whose materials are used in the construction or repair of a building is more meritorious than that of the contractor who has used the materials in the construction and refuses to pay for them. Such claims have preference in general by statute. It would doubtless work an equitable result if the legislature would make claims for materials and labor furnished in the erection or repair of public buildings a lien upon the fund to be paid therefor, superior to the claim of the contractor. Laborers and material-men could then divert the course of the payments, which would otherwise go to the contractors, into their own hands by virtue of the statutory subrogation. But where there is no legislation and no contract to affect the status of the parties, the simple relation of debtor and creditor exists between the material-man and contractor, and the former can resort only to the remedies common to such creditors for the collection of their debts.

The question, then, is, does the plaintiff, a simple contract creditor, state facts entitling him to equitable relief against his debtor?

The county is not sued. It is conceded that the statute does not authorize suit in the circuit court against a county, and that it could not be made a party to this suit. The complaint alleges that the materials were furnished to Hilliard through his agent upon Hilliard's express promise to to pay for them, and that the account is due and unpaid. That was a statement of a cause of action for a personal judgment against Hilliard. It alleges also that Hilliard is insolvent, that the county is indebted to him, and, in effect, that unless he gets his pay out of the amount due by the county, nothing can be collected.

A court of law could not reach the debt due by the county, because a county is not subject to garnishment. Boone County v. Keck, 31 Ark. 387.

It is the peculiar province of equity to reach interests of a debtor which cannot be seized under legal process when its aid is invoked by a judgment creditor who has exhausted his legal remedies without effect. But the act of March 31, 1887 dispenses with the necessity of a previous judgment as a condition to obtaining equitable relief under a creditor's bill. It provides that "in suits to set aside fraudulent conveyances, and to obtain equitable garnishments, it shall not be necessary for the plaintiff to obtain judgment at law in order to prove insolvency, but in such cases insolvency may be proved by any competent testimony, so that only one suit shall be necessary in order to obtain the proper relief." Acts 1887, p. 193. The object of the act was to dispense with the useless...