Noss v. Cord

By the Court,

Smith, J.

The defendants in error filed a petition for 'a lien as mechanics, in the County-Court of Milwaukee county, in pursuance to chapter 120 of the Eevised Statutes, claiming a lien on a certain building, on a certain lot described in said petition, and claiming amount dne $95.00. The petition was filed Feb. 4, 1852, and the same day an action was 7 1 J . commenced to recover the claim in accordance with provjgjong 0f section 8, of the chapter before named. The defendant pleaded the general issue, with notice ; trial was had, upon which the claim of the plaintiffs was reduced, by payments and set-off, to the sum of ten dollars, for which the County Court rendered judgment in favor of the plaintiffs, together with full costs, which were afterwards taxed at $21.04.

The defendant below then moved the court to vacate or set aside so much of the judgment as awarded costs to the plaintiffs, on the ground that the amount was within the jurisdiction of a justice of the peace, and the proceeding should have been commenced in a justice’s court. The court denied the motion; to which exceptions were taken by the defendant below, and the case by him brought here by writ of error, for the judgment of this court.

It is insisted by the plaintiff in error, that when the amount of the claim, for which a mechanic or other person has a lien upon a building under chapter 120 of the Revised Statutes, is $100, or less, he should file his petition for a lien in the County or Circuit Court, and then proceed to obtain his judgment before a justice of the peace, and if personal property of the debtor cannot be found to satisfy his judgment, he should take a transcript of the judgment of the justice, and file the same in the Circuit or County Court, in which his petition may have been filed before.

We do not think so. The object of chapter 120 of the Revised Statutes was, to provide a certain lien upon buildings, in favor of those who had bestowed labor or materials in the erection or construction thereof. The statute provides a peculiar remedy, to he enforced in a manner, in some respects peculiar; and especially does it give peculiar and extraordinary force to the execution issuing upon the judgment rendered in such cause. The sheriff is required to give the purchaser an absolute deed of the premises, on sale by virtue of the execution. This execution must follow the judgment, and the judgment must be in pursuance of the action commenced upon the claim or petition filed. This petition or claim is required by section 4, of the said chapter to be filed, and an action for the recovery thereof to be commenced within one year from the time of the furnishing of the materials, or performance of the work; and, by section 5, the petition or claim is required to be filed in the Circuit or County Court of the proper copnty.

The statute evidently contemplates all the proceedings to be had in a court of record. The filing of a transcript of a justice’s judgment, in the Circuit Court, would not authorize such an execution and sale as is contemplated by the 11th section, nor could a sale upon execution issued out of the Circuit Court, upon the filing of the transcript, carry the title, or authorize the deed, as prescribed by that section. The transcript could have no relation to the lien filed, and would only authorize the issuing and service of an execution in an ordinary manner.

Justices of the peace have no jurisdiction of a mechanic’s lien, or of the process to enforce it. It is a proceeding peculiar to a court of record. It must there be commenced and consummated, and the party recovering is entitled to costs.

The judgment of the County Court is affirmed with costs.