Francisco v. Pine Cliffe Camp & Country Club, 194 N.C. 320 (1927)

Oct. 5, 1927 · Supreme Court of North Carolina

194 N.C. 320

W. H. FRANCISCO v. PINE CLIFFE CAMP AND COUNTRY CLUB and W. B. WADSWORTH v. PINE CLIFFE CAMP AND COUNTRY CLUB.

(Filed 5 October, 1927.)

Judgments — Liens—Mechanics’ Liens — Appeal and Error — Statutes.

Where a laborer on a building being constructed has failed in his action to establish a lien on the building, and Judgment is entered creating only a Judgment lien from which he has not appealed, the lien of - the Judgment takes effect from the time of its rendition, and does not relate back to the time of the filing of the lien in the clerk’s office under the provisions of our statute relating to mechanics’ liens so as to give it priority out of the proceeds of the sale of the property to the liens of other Judgments theretofore entered.

Appeals by W. H. Erancisco from Granmer, J., at June Term, 1927, of CRAVEN.

Controversy among judgment creditors relative to tbe proper distribution of proceeds arising from sale of defendant’s land under execution. Tbe question presented is tbe right to priority of satisfaction out of said funds.

From tbe order entered W. H. Francisco appeals, assigning error.

Guión & Guión and L>. H. Willis for plaintiffs:

Whitehurst & Barden for appellees.

Stacy, C. J.

These appeals present but a single question. It is tbis: When notice of claim is filed in tbe clerk’s office by a laborer, mechanic or material-furnisher, and judgment subsequently rendered in an action by such laborer, mechanic or material-furnisher against tbe owner of tbe building for tbe amount of bis claim, but in which tbe plaintiff’s right to a statutory lien as a laborer, mechanic, or material-furnisher, is specifically denied, does tbe lien of said judgment take effect from tbe date of its entry, or would such lien relate back to the date upon which tbe laborer, mechanic, or material-furnisher filed notice of bis claim in tbe clerk’s office?

Tbe question, answers itself. His Honor correctly beld tbat as "W. H. Francisco failed to obtain a judgment on bis claim of lien as a laborer, mecbanic, or material-furnisber, and did not appeal from tbe order awarding bim judgment as a general creditor only, tbe lien of tbe judgment entered in bis favor took effect from tbe date of its entry, 31 January, 1927, and not from tbe date of tbe filing of claim in tbe clerk’s office, 30 July, 1926, wbicb be failed to prosecute to a successful conclusion, and tbat said judment was not entitled to share in tbe distribution of tbe proceeds, derived from tbe sale of defendant’s land under execution, over other judgments, docketed prior to 31 January, 1927.

Affirmed.