Casserly v. Waite
| Decision Date | 15 May 1900 |
| Citation | 124 Mich. 157,82 N.W. 841 |
| Court | Michigan Supreme Court |
| Parties | CASSERLY v. WAITE, Circuit Judge. |
Application for mandamus by Patrick Casserly against Byron S. Waite Wayne circuit judge. Writ denied.
Bacon & Yerkes, for relator.
Russel & Campbell, for respondent.
Relator applies for a writ of mandamus to compel respondent to vacate an order striking the answer of the relator from the files in a cause pending in the Wayne circuit court, in chancery, wherein the Union Trust Company is complainant and the relator and others are defendants. The respondent has made return to an order to show cause. It appears that the bill of complaint in the cause in which the order complained of was entered was filed December 3, 1897 for the purpose of foreclosing a mechanic's lien upon property owned by relator. Relator and the other defendants answered the bill, and on November 4, 1898, the cause was heard upon pleadings and proofs taken in open court. Several objections to the proceedings were made at and during the hearing, and, among others, that the principal contractor was a necessary party to the suit, and, as he had not been made a party, the bill should be dismissed. At the close of the testimony, the court (Frazer, J.) said: Application was thereupon made to amend the bill, and due notice thereof given. An order was made permitting said amendment, and the amendment was made, making the principal contractor a party. Subpoena was issued upon him, and the bill was taken as confessed against him for want of answer. After the bill had been taken as confessed by the principal contractor, and on July 24, 1900, the relator herein, the owner of the property, filed an entire new answer to the amended bill, which answer contained all the statements of the original answer, and in addition thereto introduced some new matters of defense, and on January 27th filed a further amendment to paragraphs 11 and 12 of the said answer, wherein additional new matters of defense was set up. On January 30th complainant made a motion to strike the amendment answer and the amendments thereto from the files. The motion was granted, and the relator now asks that the order be set aside.
It appears that the original answer and the amendment thereto filed by relator before the case was heard allege the following matters in defense to the suit: (1) That the times when the first of the lumber and materials were furnished and when the last of the lumber and materials were furnished are not correctly stated; (2) that the lumber was never accepted, and that it was not used in the building; (3) that there was nothing due to the complainant for lumber and materials furnished for the construction of the building upon relator's property. It also appears that, in addition to the defenses set up in the answer, relator at the hearing made the following objections to the proceedings: (a) That the bill was not properly sworn to and signed; (b) that the lumber did not go into the building; (c) that relator was not the owner of the property at the time the contract was made; (d) that the account of the Union Trust Company, receiver, with the principal contractor, was so mingled that the amount due for lumber and materials for this particular building could not be determined; (e) that the principal contractor is a necessary party; (f) that the statement of the claim for lien was not in accordance with the statute. That these objections were made and considered by the courts appears from the written opinion of Judge Frazer, attached to the return now before us. All these objections were finally determined by the court at that time. It was there said, 'I think all the other objections to the bill are not tenable.' This had reference to the objections above set forth. An examination of the new answer and the amendment thereto discloses the following defenses: (1) That the statement in the bill of complaint as to the time when the first of the lumber was furnished and when the last was furnished is not correct; (2) that the lumber was not accepted, and that there is nothing due; (3) that no correct statement of the claim was ever served upon relator, or filed with the register of deeds. It is seen that these are the identical defenses disclosed by the original answer, and were all disposed of by Judge Frazer in his opinion set forth above. The new answer and the amendment allege the following new matters of defense: (1) That the suit is barred by the statute of limitations; (2) that the complainant had no right to amend its bill by making the principal contractor a party; (3) that relator has paid the principal contractor in full, and that therefore there can be no lien; (4) that the mechanic's lien law is unconstitutional.
It is the claim of relator that the order of the court striking the amended answer and the amendments thereto from the files has prevented the relator from availing himself of the defense that the said complainant is barred from proceeding under its amended bill of complaint because of not having made the original contractor a party defendant within the time required by the statute for enforcing mechanic's liens that this defense could not be interposed by relator until after complainant had filed its amended bill. It appears, as we have seen, that when the matter was on argument before Judge Frazer the objection was made by relator that the contractor was not made a party to the bill. The court thereupon permitted the complainant to amend its bill by making him a party. The statute provides (Comp. Laws, � 10,718) that: 'The several liens herein provided for shall continue for one year after such statement or account is filed in the office of the register of deeds and no longer, unless proceedings are begun to enforce the same as hereinafter provided; and such liens shall take priority as follows: * *...
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