Deters v. Renick

37 Mo. 597

• Court: Supreme Court of Missouri
• Decided: March 15, 1866
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

Plaintiff filed his lien in the St. Louis Land Court, upon a building belonging to one R. E. Bridwell, for materials furnished. He aftewards obtained judgment, in the same court, for the value of the materials, amounting to the sum of two hundred and eighteen dollars and sixty-seven cents, upon which execution issued, and the sheriff sold the building at public vendue, and the plaintiff became the purchaser thereof. The ground upon which the building was erected had been conveyed by deed of trust, prior to tlie filing of plaintiff’s lien, and was subsequently sold at trustee’s sale to the defendant, who entered into the possession of the premises. The defendant refusing to allow plaintiff to enter on the premises for the purpose of removing the building, this proceeding was instituted by plaintiff, in conformity with the 10th section of the law. respecting mechanics’ liens (2 R. C. 1855, p. 1068), to enforce his rights. The court sustained a demurrer to the petition, on the ground that the 10th section of the general law was repealed and superseded by the law of 1857 for the securing of liens on buildings to mechanics and others, and especially applicable to St. Louis county.

The only question to be determined in this case is, whether a party in St. Louis can-pursue his remedy under the 10 th section of the general law relating to mechanics’ liens, or whether that section is repealed or rendered inoperative by the special law of 1857. By § 20 (Laws of 1857, p. 671), “all acts, or parts of acts, contrary to, or inconsistent with, the provisions of this act, so- far as the same apply. to the county of St. Louis, are hereby repealed.” From the language here used, it clearly appears that it was not the intention of the Legislature to repeal the whole law, but only such parts as were contrary to, or inconsistent with, the special law. There is nowhere in the special law any provision substituted for the 10th section, nor is there anything repugnant to it; and whilst the law is complete so far as it goes, there is nothing to supply the object for which the 10th section was designed. The section is not repealed in express terms, and it will not be construed as repealed by implication, unless it is so repugnant to the special law as to be wholly irreconcilable. No such repugnancy is perceived to exist.

The judgment is reversed, and the cause remanded.

Judge Holmes concurs; Judge Lovelace absent.