The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-05-08

OPINION THE
by subcontracor for $50 9S against defendant
Lincoln personally the principal contractor and defendant
Cooper the owner for the enforcement of lien under the
mechanics lien law, tried jury waived and by consent
judgment ordered for the plaintiff for 349S, including
and Lincoln personally and against Cooper
for the enforcement of the lien without prejudice to the right
Of the the enforcement of the lien by execution
The only question raised by the exceptions is whether
execution could properly issue Judgment for the
orcement of the lien against the property covered by it. 1t is
conended that the deficient in failing provide proper
machinery for the enforcement of lien and that valid
ecuion upon judgment for the enforcement of lien
against in favor of ubconactor, although might
himself has the materials
labor
The Civ l. Sec. 1745) provides The liens hereby
provided may be enforced by proceedings in
Court of competent jurisdiction by service of summons
pnctced. Such summons shall forth the ordinary
allegations in assunsi and in addition thereto that lien
has been filed Judgment upon such proceedings
shall be ordinary and be enforced by
alleged In the for services material
upon which the lien has accrued shall have been directly with
owner the propertv an attachment may ue IN com
The statute contempaes enforcement of the lien by an
action at law If the action by principal
against the there could be difficulty for the ordinary
allegations IN assumpt could be made and Judgment be OBJ
tanned against the personally the But when
here the action by subcontracto allega
tons IN ampt ordinarily be made against the principal
contractor only and personal Judgment be obtained against
him alone. And yet why owner NAV not
be made party and Judgment entered against him for the
enforcement of the lien Certainly is necessary party
where his interests to be affected While the proceeding
to certain extent Of the nature of proceeding ch is
not so in all respects is a proceeding leading to uo
men against the property which will bind all the world Per
parties bound The is necessary party
defendant though Judgment be entered against
personally The ordinary allegations made
as between the subcOnractor and principal
allegations to show the relation of the the subject
matter This followed in other iscions I'm such
cases the Judgment conformity with the allegations against
the principal contractor personally the against
m owner Tor the enforcement OF the lien against his interest
IN the property in question See Lee Uimbey Ala
359 (5 So HID; Nay Thomas Hdrd,rarc Co. T. HcCoa-
nell, lO2 Ala. 16S GA So. 652) Our statute gives lien to
subconactor we'll as principal and it plainly
indicates that the be made party to AN action BIZ
subconactor for the enforcement of the In this case no
objection was made to the jonder owner as party de-
PENDANT and Judgment ordered against him by consent
rs the judgment conform peaCnes so the eyec,
ton must conform to the Judgment The statute does not
authorize Judgment against the personally in an action
by subcontractor There could be such Judgment because
there no contract obligation statutory provision and there
could be no allegations which base it. The statute merely
subjects certain of his property lien and the allegations must
SET o he necessary FACTS the proof must be of those facts and
the prayer and judgment must be for enforcement Of the
en and the execution must be accordingly 1t does not follow
conended that because personal Judgment can he render
ed against the execution can issue Il i tro tho
statute in its provisions method of enforcing
the lien, but far remedy concerned il should L
construed literally 1t provides for the issuance Of execution
There Is no inherent difficulty in the way enforcing snc
Judgment by execution. Such judgments enforced elsewhere
by execution And although the statute provides that the n
ment may be enforced by <as now allowed that
may be taken that may be enforced bv execution in
conformity with the Judgment adapting execution to the
necessities OF the There is fixed particular form in
winch all executions issue In Baicy r. HuU II Wis
49, the court said: Ihe only remaining question as to that
part OF the order torbdding sale without issuing of an
eAcoi IL IS true that sale of property against which
specific lien adjudged under this law is more ANALOGOUS 70
sale on foreclosures than ordinary sale on an execution
ISSUED against the property generally. And might be more
the statute should provide for similar proceeding
but IL mas not done On the contrary it provides expressly
Ill section tat execution issue and be levied upon the
premises subject to such and thereof be made in tho
NV in ,rtlrfa
it similar footing with on execution ro, udot,o,+
where real estate has been attached Section So Chan 1871
provides that IN the latter the execution among other
things direct sale of the interest of the defendant in the prom
ery at the time the lien accrued which time should be specified
the ud gment 1t true there express provision Of tb
statute for the insertion OF such direction But it does provide
that the sale may be execution, very nature and
object of the proceeding would imply authority to
adapt the execution to the end provided for See