#### James M. Quinn v. F. A. Allen et al.

Lieu law—right of sub-contractor to personal-judgment, dependent upon existence of a lien. The right given to a sub-contractor by the 37th section of the lien law, to recover a personal judgment against the original contractor and the owner of the building, is dependent upon a lien having, at some time, attached, hence such a suit will not lie against school directors and a contractor, for labor or material furnished in the erection of a school house.

Appeal from the Circuit Court of Menard county; the Hon. Lyman Lacey, Judge, presiding.

Mr. T. W. McUeely, for the appellant.

Mr. FT. W. Branson, and Messrs. Dearborn & Campbell, for the appellees.

Mr. Justice Walker

delivered the opinion of the Court:

The assignment of error in this case questions the correctness of the decision of the court below in sustaining a demurrer to plaintiff’s declaration. It contained two counts, and, in substance, averred, that Allen agreed, with the school directors, to furnish the material and labor, and to erect and complete for them a district school house; that Allen, in the perform*40anee of Ms part of the agreement, procured of appellant material and labor used in the erection of the building, for which he had not been paid; that before the directors had paid Allen, appellant, in pursuance of the statute, gave .them notice that he would look to them for payment, and hold the house and ground liable for such material and labor; that after such notice the directors settled with and paid to Allen all that was due to him, wholly disregarding appellant’s claim.

It is' not claimed that appellant acquired a mechanic’s or material-man’s lien on the property, or, inasmuch as it was public school property, that he could have obtained such a lien. It is conceded such a lien can not attach to such property. But it is claimed, that, under the 29th, 30th and 37th sections of the chapter entitled “ Liens,” and the notices he gave the directors, he can recover. The '29th section gives the subcontractor a lien for labor or materials furnished for the construction of a building. The 30th prescribes the manner in which the sub-contractor shall give notice to the owner, by which to fix his lien. Had the statute made no further provision on the subject, there could have arisen no pretense of claim for holding the owner liable for a personal judgment, as these sections would only have rendered the property liable; but the 37th section has enlarged the liability of the owner and made the remedy more comprehensive. It provides, that if the money due the person giving the notice provided for in the 30th section, shall not be paid in ten days after the money shall become due and payable, and any money shall be due from the owner to the original contractor, then such sub-contractor may file his petition and enforce his lien in the same manner as may be done by original contractors, or he may sue the owner and contractor, jointly, for the amount due him, and recover a personal judgment, as in other cases.

Was it the design of the General Assembly to give the right to sue the owner and contractor only in cases where a lien attaches, or to authorize the enforcement of a lien where one exists, and to have the right of action also in such cases and in no other? Or was it intended to give such remedies in such *41cases, and a further remedy by suit against the owner and contractor by giving the notice, in cases where, from the character of the property, no lien could attach? The reason for the right to sue in such a case is, in all respects, the same as where a lien is or can be created. But the question is, have the General Assembly so provided ? It is manifest they have not, in express terms. The 37th section seems to require the right to pursue the remedy existing at the time, and the sub-contractor as having an election to pursue either.

The notice, the form of which is given in the 30th section, states that the sub-contractor will look to and hold the building and the owner’s interest in the ground liable for his claim. It is not in the alternative, that he will hold the property or the owner liable, but the property alone, and then the provisions of the 37th section are superadded.

All of the provisions of the statute considered, we are clearly of opinion that the right to sue and recover against the owner and contractor is dependent on a lien having, at some time, attached in favor of the sub-contractor. In this case there had been no such lien, and for the want of it, as a basis, this action can not be maintained, and the judgment of the court below must be affirmed.

Judgment affirmed.