Breneman v. Harvey

30 N.W. 846, 70 Iowa 479

• Court: Supreme Court of Iowa
• Decided: December 21, 1886
• Status: Published

Opinion

BecK, J.

I. The petition of plaintiff, and amendments thereto, show that plaintiff was employed by Harvey, and 1. MECHANIC’S lien: enforce-meat against °[\aw. performed, under such employment, labor and x „ T. ,1 services m constructing bridares tor Linn county, ° ° J 7 Harvey being employed as the contractor to do such and that abalance is due plaintiff for his labor. In the original petition plaintiff asks for judgment against all the defendants. In an amended petition he prays for such judgment; and, further, “that his lien as a mechanic and laborer be established and enforced against the property, rights and credits of the defendant Harvey in the hands of the defendant Linn county.” Copies of plaintiff’s account for the labor were filed with his petition and amended petition, showing the last item of the date of N ov~ ember 5, 1885. This account was filed December 21, 1885, in the office of the auditor of the county. The cause was tried as to Harvey and other defendants, and continued as to Linn county.

II. The statutes of this state make no provision for the remedy which plaintiff seeks in this case against the county. A mechanic’s lien cannot be enforced against its property. Loring v. Small, 50 Iowa, 271; Whiting v. Story Co., 54 Iowa, 81. We know of no statute or practice authorizing a proceeding of this character to subject the indebtedness of the county to a contractor to the claim of the sub-contractor or laborer. Counsel mistakingly attempts to apply the pro-, vision of the statute providing for mechanic’s liens, and their enforcement, in order to find a remedy for his client. These provisions apply only to cases where mechanic’s liens are provided for, and not to cases of the character of this one.

Chapter 179, Laws 1884, provide that laborers and others who are sub-contractors, performing labor or furnishing 2. counties : sub-contract-works. puWl° materials for the erection of any bridge or pub-lie building, shall have a claim against the county or other public corporation constructing it in an amount not exceeding the contract price of such bridge or building, by filing with the proper officer of the corporation an itemized and sworn statement of his claim, witbin thirty days after the-performance of the last labor, or the furnishing of the last materials. Counsel endeavored to bring the case within this provision by the last amendment of the petition; but in this he fails, for the reason that it is shown in the amendment that the statement was filed with the auditor, as above shown, more than thirty days after the date of the last item of plaintiff’s claim and account. Having failed to comply with the requirements of the statute, he cannot enforce the remedy it provides.

In our opinion, the superior court rightly struck out all those parts of the petition setting up a claim for a lien, and for a judgment against the county.

AFFIRMED.