Becker v. Hopper

• Decision Date: 27 January 1914
• Docket Number: 756
• Parties: BECKER ET AL. v. HOPPER ET AL
• Court: Wyoming Supreme Court

138 P. 179

23 Wyo. 209

BECKER ET AL. v. HOPPER ET AL

No. 756

Supreme Court of Wyoming

January 27, 1914

On Rehearing; Denied April 26th, 1915.

ERROR to the District Court, Laramie County; HON. WILLIM C MENTZER, Judge.

On rehearing.

For former opinion see 22 Wyo. 237, 138 P. 179.

The facts will be found stated in the former opinion reported in 22 Wyo. 237, and in that report of the case will be found an abstract of the briefs on the original hearing.

Judgment modified and affirmed, cause remanded.

Burke &amp Riner, for plaintiff in error, Charles Becker.

Compiled Statutes 1910, Sections 3806 and 3816, were borrowed from the Statutes of Missouri. (Lumber Co. v. Davis, 14 Wyo 455.) It is true that the word "controversy" was substituted for the word "contract," as it appeared in the Missouri Statutes, yet the contractor is required to defend any action brought on liens filed by any person other than the contractor himself. The word "controversy" is broader than the word "contract." The contractor is an indispensable party. (Wibbing v. Powers, 25 Mo. 599; Ashburn v. Ayers, 28 Mo. 75; Herman H. Horstkotte v. Menier et al., 50 Mo. 158.) The requirements of Compiled Statutes 1910, Section 3806, are jurisdictional. Sections 4381-82 and 83 do not apply. This is made clear by the Missouri decisions. (Russell v. Grant, 122 Mo. 161, 26 S.W. 958; Edward McLundie & Co. v. Mount, 123 S.W. (Mo. App.) 966; Murdock v. Hillyer, 45 Mo.App. 287; Bombeck v. Devorss, 19 Mo.App. 38; Steinmann v. Strimple, 29 Mo.App. 478.) In the foregoing cases the service was attacked by the person who had been attempted to be served. (Rumsey &c. Co. v. Pieffer et al., 83 S.W. (Mo. App.) 1027.) The Wyoming cases, Gilland v. U. P. Ry. Co., 6 Wyo. 185, and Mau v. Stoner, 15 Wyo. 109, are inapplicable, as they did not involve a mechanic's lien. The case of Hughes Bros. Paint Co. v. Prewitt et al., 157 S.W. 120, is in point on the question of defective service. As the mechanic's lien statute makes it mandatory that the contractor shall be made a party to the foreclosure suit, it is jurisdictional and cannot be waived and the general rule requiring the objection of a defect of parties to be made by answer or demurrer, in the absence of which the objection will be taken as waived, does not apply. We fear that the effect of the decision will be to abrogate in mechanic's lien proceedings at least the portions of Section 4367, Comp. Stats., herein quoted.

Marion A. Kline, for defendants in error.

Questions of first impression in the interpretation of statutes, we believe should be decided in accord with the principles of equity and justice, where supported by the greater weight of authority. (Western National Insurance Co. v. Marsh (Okla.), 125 P. 1098.) Comp. Stat. 1910, Section 3807, is similar to statutes quite generally upheld by the courts. (Kansas City &c. R. Co. v. Anderson, 233 U.S. 325, 58 L.Ed. 983; Missouri, K. & T. Ry. Co. v. Cade, 233 U.S. 642, 58 Law Ed. 1135; Missouri, K. & T. Ry. Co. v. Harris, 234 U.S. 412, 58 Law Ed. 1377; Missouri Pacific R. Co. v. Larabee, 234 U.S. 459, 58 Law Ed. 1398.) We believe the case of G. C. & S. F. & R. Co. v. Ellis, 165 U.S. 150, to be readily distinguishable from the above. (Cascaden v. Wimbish, 161 F. 245; A. T. & S. F. Co. v. Matthews, 174 U.S. 96; Fidelity Mutual Life Association v. Mettler, 185 U.S. 308; Iowa Life Insurance Co. v. Lewis, 187 U.S. 335; Farmers & Merchants Ins. Co. v. Dobney, 189 U.S. 301; Minneapolis & St. Louis Railroad Co. v. Gano, 190 U.S. 557; Gano v. Railway Co., 114 Ia. 713, 87 N.W. 714; Seaboard Air Line Ry. v. Seegers, 207 U.S. 73; Pioneer Mining Co. v. Delamotte (C. C. A.), 185 F. 752.) The Wyoming Statute allowing attorneys' fees in lien cases differs from statutes held unconstitutional by the decisions. The decision here seems to overrule the former case of Syndicate Imp. Co. v. Bradley, 7 Wyo. 228, 52 P. 532. The Legislature is vested with broad powers. (State v. Irvine, 14 Wyo. 318, 84 P. 106; Lewis Sutherland Stat. Construction, 1237.) We urge a reconsideration of the cases cited on pages 44 to 52 of our former brief. It was certainly competent for the Legislature to prescribe what should constitute a valid mechanic's lien account, and what should be sufficient evidence to establish it. (Boise Irrigation & Land Co. v. Stewart, 77 P. 31; Bardwell v. Mann, 48 N.W. 1120; Fossett v. R. I. Lumber & Mfg. Co. (Kan.), 92 P. 835; Groesbeck v. Barger (Kan.), 41 P. 204; Bear Lake Irrigation Co. v. Garland, 164 U.S. 1.) It is the general rule that lien claimants must comply with lien statutes in order to avail themselves of a remedy. (Elwell v. Morrow, 78 P. 605; Provident Loan Assn. v. Shaffer, 83 P. 274; Morris et al. v. Wilson, 32 P. 801; Bloom on Mechanics' Liens, p. 452; Lane v. Thomas, 25 Ohio Cir. Ct. 303; Hauser v. Hoffman, 32 Mo. 334; Barnett v. State (Tex.), 62 S.W. 768.) We believe that Chapter 68 of the Session Laws of 1911 was applicable and that plaintiffs were entitled to recover the full amount sued for.

Burke & Riner, in reply.

The case of Cascaden v. Wimbish, cited in support of the statute allowing attorneys' fees in lien cases, is in harmony with Railway Co. v. Ellis, upon which this court predicated its decision holding the statute unconstitutional. The same was true of Davidson v. Jennings, 60 P. 357. The Mechanics' Lien Law of Minnesota differs from that of Wyoming, hence the Minnesota case of Bardwell v. Mann is not in point. The same is true of the Kansas cases, where a different lien statute obtains. Comp. Stats. 1910, Sec. 4270, re-enforces our former contentions with reference to constructive service.

Marion A. Kline, supplementary brief of defendants in error.

A consideration of the Missouri decisions will show that while the joinder of the original contractor is in that state deemed to be jurisdictional, such is not the effect of the Wyoming Statute. An objection to defective service cannot be made by a party to an action by moving to dismiss the action. Plaintiff in error waived the objection of nonjoinder by failing to raise the defense in the manner provided by statute.

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This was an action brought by the defendants in error, John W. Hopper and Edward T. Bartley, co-partners doing business under the name of Hopper & Bartley, to enforce an alleged mechanics' lien upon certain real estate of the plaintiff in error, Charles Becker, upon which the plaintiff in error, Henry Becker, held a mortgage; the lien being claimed for certain work performed and materials furnished in and about the construction of a building, at the request of and for the firm of Brice & Mitchell, the contractors engaged in constructing said building. The case came to this court on error for review of the judgment entered upon the trial of the action establishing the lien for the sum of $ 950.27 and costs of suit, including $ 25 for attorney's fees. Upon the original hearing in this court the cause was ordered remanded to the District Court with directions to modify the judgment by deducting the sum of $ 392 from the amount of the lien and striking out the amount allowed as attorney's fees, and as so modified the judgment was affirmed. (138 P. 179.) The plaintiff in error, Charles Becker, filed a petition for rehearing, complaining only of the conclusion stated in the opinion that the plaintiffs in error as defendants below, by failing to raise the objection by answer, had waived the objection that the surviving member of the firm of Brice & Mitchell, the original contractors, had not been brought into the case as a party defendant by proper constructive service. The defendants in error also filed a petition for rehearing, alleging error in the conclusions of the court in three particulars: 1. In holding the statute allowing an attorney's fee in the case to be unconstitutional. 2. In holding the provisions of Chapter 68 of the Laws of 1911, with reference to the sufficiency of a lien statement, inapplicable to this case. 3. In holding that the item of $ 1,292 was insufficiently described in the lien statement to entitle the parties filing the same to a lien. A rehearing was granted, and the cause has again been heard. A reconsideration of the points on which a rehearing was asked has failed to convince the court of any error in the previous decision, and the writer hereof, who did not participate in that decision, joins the other members of the court in the view that the conclusions stated in the former opinion should be adhered to. The questions again raised by the petition of the defendants in error are sufficiently discussed in the former opinion, and what was there said as to those questions will be adopted for the purpose of disposing of them upon this rehearing.

In the petition of plaintiff in error for a rehearing it was stated that the objection that there was a defect of parties through the failure to properly bring the contractor into the case as a defendant was disposed of by the court on a ground not referred to in brief or oral argument or suggested at the original hearing, viz.: that the objection had been waived by the failure to raise it by answer. The argument against the view that the objection was so waived is confined to a review of the Missouri cases on the subject, on the theory that they should be followed here since our mechanics' lien statute was taken from that state. And it is contended that the effect of the Missouri decisions is to plainly declare it necessary and essential to a valid judgment enforcing a mechanics' lien that the one with whom the contract for the labor or materials was made by the lien claimant be properly brought into the case as a party defendant, and...