Brown v. Chicago, Santa Fe & California Railway Co.

36 Mo. App. 458, 1889 Mo. App. LEXIS 290

• Court: Court of Appeals of Kansas
• Decided: May 20, 1889
• Status: Published

Opinion

Smith, P. J.

— This was an action brought by plaintiff against the defendant in the circuit court of Carroll county to enforce a lien based upon an account for labor performed in the construction of the defendant’s-roadbed, of which the plaintiff had become the assignee, and as such had filed said lien in conformity with the statute — chapter 47, article 4, Revised Statutes, as was supposed.

The defendant demurred to the petition on the-ground that the law gives a lien only to persons performing the labor and rendering the services, and not to the assignee, which was by the court sustained and judgment was rendered accordingly. The defendant-brings the case here by writ of error.

I. The single question presented here for our decision is -whether, or not, the lien given laborers who have performed labor upon the road bed of any railroad m this state, by the statute, can be filed by the assignee of such laborer.

In Griswold v. Railway, 18 Mo. App. 52, which is-a case not distinguishable from this in its essential features, we held that a lien under the statute was a personal right given the laborer for his own protection and that the right to create it could not be assigned or transferred, and from that ruling we have seen no reason to depart, especially since it is well sustained by authority. 2 Jones on Liens, secs. 1493-4; Davis v. Bilsland, 18 Wall. 659; Tewksbury v. Bronson, 48 Wis. 581; Brown v. Harper, 4 Oregon, 89; Rollin v. Cross, 45 N. Y. 766; Roberts v. Fowler, 3 E. D. Smith 635; First National Bank v. Day, 52 Iowa, 680; Merchant v. Water Power Co., 54 Iowa, 451; Brown v. Smith, 55 Iowa, 31; Langan v. Sankey, 55 Iowa, 52; Caldwell v. Lawrence, 10 Wis. 331; Daubigny v. Duval, 5 T. R. 604; Pearsons v. Tinker, 36 Me. 384; Ruggles v. Walker, 34 Vt. 468.

The judgment will be affirmed.

All concur.