Vreeland v. Ellsworth

• Decision Date: 14 March 1887
• Citation: 32 N.W. 374,71 Iowa 347
• Parties: VREELAND v. ELLSWORTH ET AL
• Court: Iowa Supreme Court

32 N.W. 374

71 Iowa 347

VREELAND v. ELLSWORTH ET AL

Supreme Court of Iowa, Des Moines

March 14, 1887

Appeal from Dickinson District Court.

THIS is an action in equity to establish and enforce a mechanic's lien. There was a judgment and decree for the plaintiff. Defendant appeals.

REVERSED.

J. W Cory, for appellant.

Rice & Gridley, for appellee.

OPINION

ROTHROCK, J.

I.

The amount claimed by plaintiff is less than $ 100, and the appeal comes to us upon the following certificate of the trial judge:

"(1) Upon the trial of this case, the evidence shows that the defendant E. S. Ellsworth employed his co-defendant, E. G. Hammond, to do certain mason work upon the house named in the plaintiff's petition, and that under this agreement he was to pay the contractor as the work progressed; that the contractor, Hammond, employed the plaintiff, L. W. Vreeland, L. J. Vreeland and Abraham Hartman, as subcontractors, to perform certain portions of the work. These subcontractors commenced their work on the sixth day of August, 1883, and continued to the eleventh of the same month, on which day they completed their work. The defendant Ellsworth saw these subcontractors performing work upon this job during the time that they were performing the same, but had no other knowledge that the contractor Hammond, was owing them anything for the work than what would be inferred from his knowledge of their doing the work. On the day on which the work was completed by the subcontractors there was a settlement between Hammond and Ellsworth, and at that time the defendant Ellsworth paid the contractor for all the work that had been done up to that date, but withheld the sum of ten dollars, which was still required to complete the job. At the time of this settlement and payment to Hammond, there was enough money in Ellsworth's possession due upon the contract to pay the several claims of the subcontractors. On the fourteenth day of August, A. D. 1883, these subcontractors personally notified Ellsworth of their claims, and afterwards Ellsworth procured another party to complete the contract of Hammond, and paid him therefor. Statements and affidavits for the mechanic's liens were filed by the several subcontractors in the clerk's office on the thirty-first day of August, A. D. 1883.

"(2) Can a subcontractor obtain a decree foreclosing a mechanic's lien against land and buildings before such subcontractor obtains a judgment against the original contractor for claims against the contractor for work upon said land and buildings, and in a suit where said original contractor is a party, but no notice of suit served upon him, and no appearance made by him? Upon the foregoing statements of facts, is the defendant Ellsworth liable to the subcontractors in this case?"

Several questions are argued by counsel which do not arise upon the above certificate. This court has no jurisdiction to determine any questions excepting those propounded by the trial court.

The first point arising upon the above certificate is found in the question numbered 2. It appears therefrom that Hammond the principal contractor, was not made a...