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

22 Wyo. 237

BECKER ET AL. v. HOPPER ET AL

No. 756

Supreme Court of Wyoming

January 27, 1914

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

The action was brought by John W. Hopper and Edward T. Bartley as co-partners, doing business under the firm name and style of Hopper & Bartley, against Charles Becker and Henry Becker to establish and enforce a mechanic's lien. From a judgment in favor of the plaintiffs the defendants brought error. The other material facts are stated in the opinion.

Judgment Modified and Affirmed.

Burke &amp Riner, for plaintiffs in error.

There is grave doubt as to the constitutionality of the statute allowing a mechanic's lien to a subcontractor. The statute provides for a lien to subcontractors regardless of the terms of the contract between the owner and the original contractor, and without regard to the state of the accounts between them. While the greater number of cases hold that provisions of this kind are valid, the question as to weight of reasoning we believe open to much doubt. (Spry &c. Co v. Sault &c Co., (Mich.) 43 N.W. 778; Palmer v. Tingle, (Ohio) 45 N.E. 313; Selma &c. Factory v. Stoddard, 116 Ala. 251, 22 So. 555). The item of $ 1,292, specified in the lien statement as for "Becker Hotel contract, tinwork, etc." is uncertain, indefinite and insufficient to create a lien. (McWilliams v. Allan, 45 Mo. 73; Graves v. Pierce, 53 Mo. 423; Louis v. Cutter, 6 Mo.App. 54; Kling v. Ry. Co., 7 Mo.App. 410; Coddling v. Nast, 8 Mo.App. 573; Henrich v. Carondolet &c., Soc., 8 Mo.App. 588; Rude v. Mitchell, 97 Mo. 365, 11 S.W. 225; Smith v. Haley, 41 Mo.App. 611; Curless v. Lewis, 46 Mo.App. 278; Bruns v. Capstick, 46 Mo.App. 397; Neal v. Smith, 49 Mo.App. 328; Cahill &c. Co., v. Orphan School, 63 Mo.App. 28; Dwyer Brick Works v. Flanagan, 87 Mo.App. 340; Feeny v. Rothbaum, (Mo. App.) 137 S.W. 82; Baker v. Smallwood, (Mo. App.) 143 S.W. 518; Wharton v. Real Est. Co., (Pa.) 36 A. 725). The provisions of Chapter 68, Laws 1911, having been enacted several months after the lien statement had been filed, and after the period of limitation for filing such statement, are not applicable and cannot control the question of the sufficiency of the lien statement in this case. There is nothing in the statute indicating an intention that it should be retroactive. But a proviso in Section 1 requires that the lien account as filed shall state the amount for which, the property against which, and the labor or materials for which a lien is claimed, so as to enable the owner or his agent to identify the same. The statement of the item in question is not sufficient even under that provision, for the owner could not thereby identify the labor and materials. A mechanic's lien must be established or preserved and enforced by the law in force at the time the necessary proceedings are had for that purpose. (27 Cyc. 23, note 39). This later statute should not be construed as retroactive, or as affecting in any manner the validity of the lien account. (Lee v. Cook, 1 Wyo. 413; Craig v. Herzman, (N. D.) 81 N.W. 288; Cooley's Const. Lim. (5th Ed.) 449). The lien account was improperly verified before the attorney of the claimants, and is insufficient on that account, and should not have been admitted in evidence. (Comp. Stat. 1910, Secs. 4561, 4568; Warner v. Warner, 11 Kan. 101; Ward v. Ward, 20 O. C. C. 136; Schoen v. Sunderland, (Kan.) 18 P. 913; Harkey v. Kendall, (Neb.) 73 N.W. 953; Collins v. Stuart, (Neb.) 20 N.W. 11; Bank v. Cronin, (Neb.) 114 N.W. 158).

The contractor, Brice, was never made a party to the action, and, therefore, no valid judgment can be rendered establishing and foreclosing the lien. (Russell v. Grant, 122 Mo. 161, 26 S.W. 958; McLundie v. Mount, (Mo. App.) 123 S.W. 966; Murdock v. Hillyer, 45 Mo.App. 287; Vreeland v. Ellsworth, (Ia.) 32 N.W. 374). Plaintiffs attempted to bring the contractor in as a party by constructive service, but the service was insufficient for failure to comply with the statutory requirements. Where service by publication is relied upon to give jurisdiction over a nonresident, the statutory requirements must be successively and actively taken. (Ranch Co. v. Saul, (Cal.) 127 P. 123; Manion v. Brady, (Ia.) 138 N.W. 559). The publication for constructive service is a legal notice and is controlled as to the intervening period between the date of last publication and answer day by Section 4433, Comp. Stat. 1910 (Laws 1909, Ch. 30, Sec. 3). The trial court erroneously considered that section as not applicable to a notice published for constructive service. The motion to dismiss for the failure to make the contractor a party was well taken and should have been sustained. The insufficiency of the original proof of publication was sufficient ground for the motion, and the court erred in overruling the motion and permitting an amended proof of publication to be filed. A misstatement of the time to answer in a publication notice for constructive service renders the notice fatally defective. (Laflin v. Gato, (Fla.) 42 So. 387; Schrader v. Schrader, (Fla.) 18 So. 674; Culver v. Phelps, (Ill.) 22 N.E. 890; Newcombe v. Cohn, 67 N.Y.S. 930). The statute long in force providing for the answer day (Comp. Stat. 1910, Sec. 4417) was not repealed by the provisions of Section 4433, supra, but both sections may and should stand. The notice here claimed to be invalid merely violated the provisions of Section 4433. Where two statutes are in apparent conflict, they should be construed, if reasonably possible, so as to allow both to have force and effect. Again, no affidavit was filed that the residence of the defendant sought to be served by publication could not with reasonable diligence be ascertained, thus failing to comply with Section 4367, Comp. Stat. 1910, requiring that in all cases where the residence is not known an affidavit shall be filed before the hearing that the residence cannot with reasonable diligence be ascertained. (Ensign v. Ensign, (Kan.) 26 P. 7; Larimer v. Knoyle, (Kan.) 23 P. 487; 19 O. Dec. 507; Lutkens v. Young, (Wash.) 115 P. 1038; Liebhardt v. Lawrence, (Utah) 120 P. 215; McCracken v. Flannigan, 127 N.Y. 493, 28 N.E. 385; 32 Cyc. 476; Flint v. Coffin, 176 F. 872; Correll v. Greider, (Ill.) 92 N.E. 266; Morse v. Pickler, (S. D.) 134 N.W. 809; Grigsby v. Wopschall, (S. D.) 127 N.W. 605; Millage v. Richards, (Colo.) 122 P. 788; McDonald v. Cooper, 32 F. 745; Batt v. Proctor, 45 F. 515; Swain v. Chase, 12 Cal. 283; Beach v. Beach, (Dak.) 43 N.W. 701; Est. Malaer v. Damron, 31 Ill.App. 572; Mackubin v. Smith, 5 Minn. 367; Harrington v. Loomis, 10 Minn. 366; Kirkland v. Texas &c. Co., 57 Miss. 316; Anderson v. Marshall, (Mont.) 16 P. 576; Palmer v. McMaster, (Mont.) 33 P. 132; Carleton v. Carleton, 85 N.Y. 313; Kahn v. Matthai, (Cal.) 47 P. 698; Mills v. Simley, (Ida.) 76 P. 783; Kennedy v. Lamb, (N. Y.) 74 N.E. 834; Simensen v. Simensen, (N. D.) 100 N.W. 708; Bothwell v. Hoellworth, (S. D.) 74 N.W. 231; Plummer v. Blair, (S. D.) 80 N.W. 139; Johnson v. Hunter, 147 F. 133; Peters &c. Co. v. Collins &c. Co., (N. C.) 55 S.E. 90; Cordray v. Cordray, (Okla.) 91 P. 781; Felsutger v. Quinn, (Wash.) 113 P. 275; Spaulding v. Polley, (Okl.) 115 P. 864).

The provision of the statute relating to mechanics' liens allowing an attorney's fee to the plaintiff is unconstitutional, as violating the provision of the Constitution of the United States which guarantees to every person the equal protection of the law, and the provision of the Constitution of this State that all laws of a general nature shall have a uniform operation (Art. I, Sec. 34) and Section 8 of Art. I that all courts shall be open and every person, "for an injury done to person, reputation or property, shall have justice administered without sale, denial or delay." (Gulf &c. Co. v. Ellis, 165 U.S. 150; Davidson v. Jennings, 27 Colo. 185, 60 P. 354; Mills v. Olsen, (Mont.) 115 P. 33; Builders Supply Depot v. O'Connor, (Cal.) 88 P. 982; Stimson Mill Co. v. Nolan, (Cal.) 91 P. 262; Mannix v. Tryon, (Cal.) 91 P. 983; Hill v. Clark, (Cal.) 95 P. 382; Farnham v. California &c. Co., (Cal.) 96 P. 788; Los Angeles &c. Co. v. Higgins, (Cal.) 97 P. 414; Grand Rapids &c. Co. v. Remells, (Mich.) 43 N.W. 1006; Durkee v. Janesville, 28 Wis. 464; R. R. Co. v. Morris, 65 Ala. 193; Paddock v. Ry. Co., (Mo.) 453; Phenix Ins. Co. v. Hart, 38 S.E. 67; Openshaw v. Halfin, (Utah) 68 P. 138; Atkinson v. Woodmansee, (Kan.) 74 P. 640; Hocking Valley &c. Co. v. Rosser, (Ohio) 41 N.E. 263; Randolph v. Builders &c. Co., (Ala.) 17 So. 721; West v. Wabash &c. Co., (Mo. App.) 94 S.W. 310). Plaintiffs below were estopped from asserting their lien. We think the defense of equitable estoppel was fairly established by the weight of the evidence. (Mississippi &c. Co. v. The Ottumwa Belle, 78 F. 643).

Marion A. Kline, for defendants in error.

By the overwhelming weight of authority and reason the statute giving a lien to a subcontractor is not unconstitutional, but is valid. (Bolln Co. v. Irr. Co., 19 Wyo. 542, 121 P. 24; Smith v. Newbaur, (Ind.) 42 N.E. 40; Jones v. Hotel Co., 86 F. 371; Blauvelt v Woodworth, 31 N.Y. 285; Hotel Co. v. Jones, 193 U.S. 532; Glacius v. Black, 67 N.Y. 563; Guar. & Trust Co. v. Wrenn, (Ore.) 56 P. 271; O'Neill v. School, 26 Minn. 329, 4 N.W. 47; Albright v. Smith, 3 S.D. 631, 54 N.W. 816; Laird v. Moonan, 32 Minn. 358, 20 N.W. 354; Gardner v. Leck, 46 Minn. 285, 48 N.W. 1120; Gurney v. Walsham, 16 R. I. 699, 19 A. 323; Spokane M. & L. Co. v. McChesney, (Wash.) 21 P. 198; Hightower v. Bailey, 108 Ky. 198, 56 S.W. 147; Bowen v. Phinney, 162 Mass. 593, 39 N.E. 283; Spofford v. True, 33 Me. 283; Mallory v. LaCrosse Co., 80 Wis. 170, 49 N.W. 1071; Henry & C. Co. v. Evans, 97 Mo. 47, 3 L. R. A. 332; ...