Seeman v. Schultze

• Decision Date: 22 March 1897
• Citation: 100 Ga. 603,28 S.E. 378
• Parties: SEEMAN v. SCHULTZE.
• Court: Georgia Supreme Court

28 S.E. 378

100 Ga. 603

SEEMAN

v.SCHULTZE.

Supreme Court of Georgia.

March 22, 1897.

Mechanics' Liens — Property Subject — Sidewalks.

Inasmuch as statutes allowing liens in favor of certain persons and classes of persons are in derogation of the common law, and therefore are to be strictly construed, the statute of this state allowing liens in favor of contractors "for work done and material furnished in building, repairing, or improving any real estate of their employers cannot be held to authorize a lien in favor of such persons for paving a sidewalk in a public street adjacent to the lot of the employer, but which of itself constitutes no part of a building constructed under the same contract of employment under which such sidewalk was laid. (Syllabus by the Court.)

Error from superior court, Chatham county; R. Falligant, Judge.

Action by William Schultze against Henry I. Seeman to foreclose a mechanic's lien. Prom a judgment for plaintiff, defendant brings error. Reversed.

A. C. Wright, for plaintiff in error.

R. R. Richards, for defendant in error.

SIMMONS, C. J. It appears from the record that Seeman owned a lot in the city of Savannah, at the corner of Lincoln and Henry streets. He made a contract with one Steinacher, by which the latter was to build two houses upon this lot, and to build certain fences and sheds, and to pave the sidewalk in front of the houses. The contract to build the fences and sheds and to pave the sidewalk was subsequent to the contract for building the houses. Steinacher employed William Schultze to pave the sidewalk, and upon the completion of the contract of paving Schultze filed and had recorded his lien upon the lot, and, his demand not being paid, he commenced a proceeding in a justice's court to foreclose his lien. What was done with the case in the justice's court does not appear upon the record. It does appear, however, that it was appealed to the superior court, and that in the trial in that court the plaintiff, under the charge of the judge, had a verdict establishing his lien. The defendant made a motion for a new trial upon several grounds, and, the motion being overruled, he excepted.

The controlling question in the case is whether Schultze, a mechanic, under the law of this state, had a lien on the land of the defendant for laying down a sidewalk on a public street in front of and adjacent to the land. The defendant in the court below contended and requested the court to charge the jury that a mechanic had no such lien. This charge the court refused to give, but, on the contrary, charged "that, if you find from the evidence that Mr. Seeman contracted with Steinacher to erect houses upon the lot in question, and also make an additional contract with Steinacher to put additions to said houses, build fences, and lay pavements as part of the contract for the improvements of said real estate, and the plaintiff was employed by said Steinacher to lay the pavement about said real estate under said contract, that upon completion of said subcontract he would be entitled to a lien under section 1979 of the Code, if the same was perfected according to the statute." The section referred to (now section 2801 of the Civil Code) declares that "all mechanics of every sort, who have taken no personal security therefor, shall, for work done and material furnished in building, repairing or improving any real estate of their employers, * * * each have a special lien on such real estate, " etc. Counsel on both sides, in the argument here, cited several cases to sustain their contentions upon this question. In our...