Carswell v. Patzowski
| Decision Date | 01 July 1903 |
| Citation | 55 A. 342,20 Del. 403 |
| Court | Delaware Superior Court |
| Parties | FRANK R. CARSWELL v. RICHARD PATZOWSKI, owner or reputed owner |
Superior Court, New Castle County, May Term, 1903.
MECHANICS' LIEN (No. 9, September Term, 1902).
Demurrer to plea in abatement--Exceptions to lien.
Herbert H. Ward for plaintiff.
Robert H. Richards and William S. Hilles for defendant.
OPINION
On June 24th, 1902, Frank R. Carswell, the plaintiff, filed his statement under the mechanics' lien law for a lien against four houses and lots in the City of Wilmington, in this county, and against Richard Patzowski, the defendant as the owner or reputed owner thereof. The claim was for work as an architect, which was commenced February 21, 1901, and finished March 10, 1902, under a contract made with the said Patzowski as the then owner or reputed owner.
February 14, 1902, while the work was in progress, Patzowski conveyed the lands and buildings in question to the "New Castle Lumber Company," a corporation of this State, by deed which was duly recorded the same day.
In the statement of lien filed by the plaintiff, and in the scire facias issued thereon, the said New Castle Lumber Company, the owner of the lands and buildings at the time the statement was filed, was not made a party defendant the only defendant named therein being Patzowski, the owner with whom the contract was made.
The defendant pleads such failure to make the said New Castle Lumber Company a party defendant in abatement of the suit.
The plaintiff demurs generally to this plea.
The question raised, therefore, is whether the New Castle Lumber Company is a necessary party defendant.
There is much apparent conflict of authority as to who should be made parties defendant in mechanics' lien cases, where there has been a change of ownership after the contract is made and work begun.
The conflict has grown out of the varying language and provisions of the statutes of the different States, and from the method of enforcing the lien, whether by proceedings at law or in equity.
The language of some of the statutes is either mandatory or clearly imports that the owner of the land and buildings at the time the suit was commenced should be made defendant. This applies to the decisions, with much force, in Massachusetts, New Jersey and Maryland.
Where the lien has been enforced as if in equity, the equitable rule that all parties interested should be made defendants has prevailed. The cases in Connecticut and Indiana are within this class.
The Pennsylvania statute in its language and main features is very like our own. Under that statute it has been uniformly held that the only essential party defendant is the original owner of the buildings or lands, who contracted for the labor or material.
Jones vs. Shawhan, 4 W. & S. 257; Fourth Avenue Baptist Church vs. Schreiner. 88 Pa. 124.
Like rulings have been had in Wisconsin and in Maine.
McCoy vs. Quick, 30 Wis. 521; Colley vs. Doughty, 62 Me. 501.
While these decisions do not control us in construing our statute, they throw much light on the subject. We are to be controlled, however, by the terms of our own statute.
The statute provides that a lien may be obtained in pursuance of a contract with the owner or reputed owner or contractor. It further prescribes that the statement of claim, which is the commencement of the suit, must set out the name of the owner or reputed owner and of the contractor, and whether the contract was made with such owner or reputed owner or contractor. The scire facias and all subsequent proceedings are based upon this claim, and point only to the contract owner or reputed owner as the defendant. The contract when made is the pivotal point, and fixes the parties who are the necessary defendants in any suit thereunder. Other holders are only recognized in the statute as entitled to notice by service of the sci. fa. upon the tenant when the premises are occupied, or by notice posted upon the premises, etc.
Careful examination of our statute clearly indicates that whenever the word owner or reputed owner is used, it means the owner or...
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Wilmington Sash And Door Company v. Nuttall
... ... the same, and for the furnishing of the whole or any part of ... the materials therefor." Carswell v. Patzowski, ... 20 Del. 403, 4 Penn. 404, 55 A. 342, 1013, and ... Cantera v. Eighth Street Baptist Church, 26 Del ... 461, 3 Boyce 461, 84 A ... ...
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Cantera v. Trustees of Eighth Street Baptist Church
...by contractors, and hence his claim should be dismissed. The plaintiff likewise cites and relies upon the decision in the case of Carswell v. Patzowski, drawing from language of the court, however, a meaning different from that given it by the defendant. Upon the authority of this decision,......