Cannon & Dounce v. Williams

¶1(dissenting). I concur with that portion of the foregoing opinion in which it is held that the mechanic’s lien cannot be maintained, but dissent from the views expressed upon the other branch of the case. In my judgment, upon the failure of the appellee to establish a lien, the entire proceedings should have been dismissed. This rule has been repeatedly announced by this court, and ought not to be now departed from unless changed by positive legislative enactment. Jensen v. Brown, 2 Colo. 694; Barnard, Adm’r, v. McKenzie, 4 *27Colo. 251; Hart et al. v. Mullen, 4 Colo. 512; Mining Co. v. Finch, 6 Colo. 214; Greeley, S. L. & P. R’y Co. v. Harris, 12 Colo. 226. Such chauge was made at the last session.1 See Session Laws of 1889, sec. 11, p. 252. This cause had been tried and determined in the courts below, however, prior to this amendment, and, of course, cannot be affected thereby.

¶2I discover nothing in the language quoted in the majority opinion from sections 2155 and 2161, General Statutes, that permits the entry of a personal judgment unless the lien be first established. I am of the opinion that the amendment of 1889 referred to was enacted for the sole purpose of making this change. If the prior statute permitted a personal judgment without a lien, this amendment of 1889 was unnecessary. I think it was necessary, and that the only authority for such judgment 'is derived therefrom. As this case is not affected by the act of 1889, the entry of a personal judgment against Cannon was improper, and this part of the judgment should also be reversed.