Bown & Sons v. Honabarger

• Decision Date: 20 July 1960
• Docket Number: No. 36325,36325
• Citation: 171 Ohio St. 247,168 N.E.2d 880
• Parties: , 12 O.O.2d 375 BOWN & SONS, Appellee, v. HONABARGER et al., Appellants, et al., Appellee.
• Court: Ohio Supreme Court

Page 247

171 Ohio St. 247

168 N.E.2d 880, 12 O.O.2d 375

BOWN & SONS, Appellee, v. HONABARGER et al., Appellants, et al., Appellee.

No. 36325.

Supreme Court of Ohio.

July 20, 1960.

Syllabus by the Court

1. An affidavit for a mechanic's lien, which in all other respects complies with the statutory requirements for the creation of a lien, is not rendered invalid by the fact that it is accepted for record and filing by a county recorder without the name of the person who prepared it being noted thereon, and the lien created by such affidavit is not for that reason destroyed. (Section 317.111, Revised Code, construed.)

2. Where, in an appeal to the Court of Appeals on questions of law only, such court finds a judgment to be against the weight of the evidence, it is the sole function of such court to set aside the judgment and remand the cause for a new trial.

3. The Supreme Court, not being required to weigh evidence, will not review a determination by the Court of Appeals that a finding is against the weight of the evidence.

Wright, Harlor, Purpus, Morris & Arnold, Columbus, James W. Freeman, Coshocton, and Rudolph Janata, Jr., Columbus, for appellants.

Pomerene, Burns, Milligan & Frase and Eugene R. Weir, Coshocton, for appellees.

The controversy herein centers around the validity of two mechanics' liens.

Plaintiff, hereinafter referred to as Bown, brought suit against appellant defendants, hereinafter referred to as Honabarger, to foreclose a mechanic's lien. Appellee defendant, hereinafter referred to as Schmelzer, filed a cross-petition against Honabarger, also upon a mechanic's lien.

The Bown and Schmelzer claims were tried separately in the Court of Common Pleas.

The trial court held that the Schmelzer lien is not valid because the affidavit for a mechanic's lien, admittedly filed within the statutory time and received by the county recorder for record, was incomplete in that it did not contain the name of the scrivener who prepared it, as required by Section 317.111, Revised Code.

As to the Bown lien, the trial court held that Bown had performed no work in good faith under his contract within a 60-day period, preceding the filing of his affidavit, and that, therefore, the claimed lien is not valid.

On appeal to the Court of Appeals, that court reversed the judgment as to Schmelzer, on the finding that the failure to comply with the provisions of Section 317.111, Revised Code, did not invalidate the instrument or the lien created thereby. The Court of Appeals reversed as to the Bown lien, for the reason that the judgment of the trial court 'is against the manifest weight of the evidence,' and entered final judgment for Bown.

The cause is before this court upon the allowance of a motion to certify the record.

BELL, Judge.

Section 317.111, Revised Code, so far as pertinent hereto reads as follows:

'No instrument by which the title to real estate or personal property, or any interest therein or lien thereon, is conveyed, created, encumbered, assigned or otherwise disposed of, shall be received for record or filing by the county recorder unless the name of the person who, and governmental agency, if any, which prepared such instrument appears at the conclusion of such instrument and such name is either printed, typewritten, stamped, or signed in a legible manner. * * *

'This section does not apply to any instrument executed prior to the effective date of this section, nor to the following: any decree, order, judgment, or writ of any court; any will or death certificate; any instrument executed or acknowledged outside of this state.' (Emphasis added.)

So far as the Schmelzer lien is concerned, the absence of the scrivener's name on the affidavit which was received for record and filing by the county recorder is the only impediment to its validity.

Does, therefore, the absence of the scrivener's name from an affidavit for a mechanic's lien, an affidavit which in all other respects complies with the statutory requirements for the creation of a lien, render invalid the affidavit and the lien sought to be created thereby?

It is contended by Honabarger that Section 317.111, Revised Code, although in the chapter of the Code dealing with the duties of the county recorder, must nevertheless be read in pari materia with the sections of the Code dealing with mechanics' liens. And with this contention we are generally disposed to agree. Clearly, in speaking of the creation of liens, the General Assembly had the mechanic's lien sections in mind.

In Bullock v. Horn, 44 Ohio St. 420, 7 N.E. 737, this court said, in paragraph one of the syllabus:

'The statutes of this state upon the subject of mechanics' liens, being remedial in their nature, are to be liberally construed in order to carry out the purpose of the Legislature in their enactment.'

In the opinion of the case, which was noted with approval by this court in Vernon v. Harper, 79 Ohio St. 181, 86 N.E. 882, 20 L.R.A.,N.S., 44, Judge Spear, commenting on the purpose of the Legislature, said:

'The labor of the workman and the material of the materialman having contributed to the erection of the structure,--having, indeed, created, in part the very property on which the lien is sought to be attached,--the purpose of the law is to give to such parties the right, where the contractor refuses to pay, to be paid for their labor and material out of the fund which has been earned under the contract, and out of the structure, and the land upon which it stands * * *.'

It is clear, we think, that the provisions of Section 317.111, Revised Code, authorize the county recorder to refuse to accept for record or filing an included instrument which does not comply with the requirement of the statute. In fact, his clear duty under the statute is to refuse to accept it. But having violated this duty and placed the instrument on record, how has the action of the recorder in so doing prejudiced the landowner? He has received, as has all the world, notice of the claim against him in terms and amounts that are unchangeable. Macklin v. Miller Improved Gas Engine Co., 13 Cir.Ct.R., N.S., 94, affirmed 86 Ohio St. 354, 99 N.E. 1130. He still has available to him all the means accorded by statute to resist the lien or to require its discharge if it is not timely enforced. The identity, or lack of identity, of the person who prepared the affidavit can hardly be of any concern to him.

But the presence of the requirement in the statute indicates that it must be the concern of someone. And the clue to the source of that concern is readily apparent from the report of the Unauthorized Practice of Law Committee made to the Council of Delegates of the Ohio State Bar Association and appearing in 27 Ohio Bar, 963 (issue of November 1, 1954):

'As an aid in the fight against...