Carr-Cullen Co. v. Cooper

• Decision Date: 02 January 1920
• Docket Number: Nos. 21553-21558.,s. 21553-21558.
• Citation: 144 Minn. 380,175 N.W. 696
• Parties: CARR-CULLEN CO. v. COOPER et al.
• Court: Minnesota Supreme Court

144 Minn. 380

175 N.W. 696

CARR-CULLEN CO.

v.COOPER et al.

Nos. 21553-21558.

Supreme Court of Minnesota.

Jan. 2, 1920.

Appeal from District Court, Hennepin County; Horace D. Dickinson, Judge.

Separate actions by the Carr-Cullen Company to foreclose mechanic's liens against Justin J. Cooper and others, against Lisette S. Laraway (two actions), against John Kirk and others, against James Stoddart and others, and against Flora Boasberg and others, in which the Northland Pine Company filed answers claiming one lien on lots on which six houses had been built, and asked for foreclosure of its lien. From an adverse judgment in each of the actions, the Northland Pine Company appeals. Judgments reversed.

Syllabus by the Court

The evidence is stated, and held to require a finding that a materialman contributed to the erection of six dwelling houses on eight adjoining lots under and pursuant to the purposes of one general contract and had a right to file one lien statement for its entire claim, embracing all the lots, as provided by section 7027, Gen. St. 1913.

A voluntary appearance in an action to foreclose a mechanic's lien is the equivalent of the service of a summons upon the person so appearing. If a party so far appears as to call into action the powers of the court for any purpose except to decide upon its own jurisdiction, it is a ‘full appearance.’ The acts of the defendants who are here questioning the jurisdiction of the district court over them amounted to a voluntary general appearance.

The failure of one who is proceeding to foreclose a mechanic's lien to file a notice of lis pendens, as required by section 7030, Gen. St. 1913, cannot be taken advantage of for the first time on appeal to this court.

A lien claimant may assert a mechanic's lien by answer in actions brought by another lien claimant to foreclose its lien on the same property, and may enforce its lien in such actions as to all persons who are made parties thereto within one year from the date of furnishing the last item mentioned in its lien statement. Elijah Barton, of Minneapolis, for appellant.

Josiah E. Brill, of Minneapolis, for respondent Carr-Cullen Co.

Arthur H. Anderson, of Minneapolis, for respondents Laraway, Confer, Kirk, and others.

J. B. Faegre and C. G. Krause, both of Minneapolis, for respondents Beutner.

LEES, C.

In six actions brought by the Carr-Cullen Company for the foreclosure of as many mechanic's liens, the Northland Pine Company filed answers, claiming one lien on eight adjoining lots in the city of Minneapolis on which six dwelling houses had been built, and asked for the foreclosure of its lien. The owners of the lots and the assignees of mortgages thereon contested its claim to a lien, and it appeals from an adverse judgment in each of the actions.

1. The principal question mooted is whether it had a right to a lien on the property as a whole or whether its claim grew out of separate and distinct transactions with the owner and builder of the houses. It is conceded that appellant furnished building materials used in the construction of the houses, but the court found that such materials were not furnished under or pursuant to the purposes of one general contract with the owner of the property, as provided by section 7027, G. S. 1913.

These are the material facts relating to this question:

In March, 1916, the lots were owned by one Cooper, a contractor and builder, who was about to erect six dwelling houses on them, dividing them so that each house would occupy a portion of two lots. Appellant offered to furnish the lumber and other building materials required to construct the houses, and a price was agreed upon. Cooper began to build in April, 1916. The construction of the houses was a continuous enterprise and was part of one general improvement or connected undertaking which he prosecuted as one job until he sold out to the Colfax Holding Company. The materials were furnished for the general purpose of enabling him to build this group of houses and were ordered from time to time as needed. Appellant billed them to him under the heading ‘Job 50th and Colfax.’ The houses were located on Colfax and Fiftieth street. No separate account was kept of the materials which entered into the construction of each house; but when appellant's teamster delivered a load he would get the signature of Cooper's foreman on a slip on which the materials delivered were listed, as a receipt therefor. On these slips the street number of the house at which the load was delivered would be entered.

On October 26, 1916, Cooper mortgaged each of the houses separately to Thorpe Bros., and they assigned the mortgages to persons who were made defendants in the Carr-Cullen actions.

On May 29, 1917, having substantially completed two and partially completed four of the houses, Cooper conveyed the entire property to the Colfax Holding Company, also a defendant in the actions.

Appellant has never been paid for any of the materials it furnished, and the amount of its just claim is $6,070.74.

The Carr-Cullen actions and one instituted by Perl Bros. to foreclose a lien on the entire property were consolidated for trial and tried together. Respondents requested the court to find the value of the materials used in each house in order that appellant's claim might be apportioned among them in case it was held that it was entitled to a lien, and the court did so.

Upon this state of facts, we hold that appellant contributed to the erection of the six houses under and pursuant to the purposes of one general contract with Cooper, that it had the right to file one lien statement for its entire claim embracing all of the eight lots, and that the provisions of section 7027, G. S. 1913, are applicable within the rules laid down by this court in Frankoviz v. Smith, 34 Minn. 403, 26 N. W. 225;Lax v. Peterson, 42 Minn. 214, 44 N. W. 3;Gardner v. Leck, 52 Minn. 522, 54 N. W. 746;Johnson v. Salter, 70 Minn. 146, 72 N. W. 974,68 Am. St. Rep. 516;Northwestern, etc., Co. v. Parker, 118 Minn. 211, 136 N. W. 855; am. Bridge Co. v. Honstain, 120 Minn. 329, 139 N. W. 619;Paine & Nixon Co. v. Dahlvick, 136 Minn. 57, 161 N. W. 257; and Northland Pine Co. v. Melin, 171 N. W. 808. There is nothing in Fitzpatrick v. Ernst, 102 Minn. 195, 113 N. W. 4, running counter to the holdings in the cases above cited, the distinction being pointed out in Am. Bridge Co. v. Honstain, supra.

2. The next question is whether the court had jurisdiction over the owners of the several houses and the assignees of the mortgages in the proceeding for the foreclosure of appellant's lien. The record is involved and confusing and we have had no little difficulty in ascertaining the precise situation.

The Carr-Cullen Company filed a separate lien claim on each of the houses. Perl Bros. and appellant each filed one lien statement covering all the lots. The first item in appellant's claim was furnished on April 8, 1916, and the last on January 15, 1917. It filed its lien statement on April 3, 1917.

Respondent Beutner purchased one of the houses from Cooper on July 6, 1916, taking a contract for deed under which he went into possession in February, 1917. Respondent Capper purchased another in the same way and went into possession at some time prior to January 1, 1917. Jennie and Joseph Brechet took a deed from the Colfax Holding Company to a third house on September 20, 1917. The Colfax Company is the owner of the three remaining houses.

Cooper, the Colfax Company, Perl Bros., and appellant were made defendants in all of the actions brought by the Carr-Cullen Company. In the action affecting the Beutner and Capper property, each respectively was made a defendant. The Brechets were not made defendants in the action affecting their property. The complaint in that, as in all other actions brought by the ...