Continental & Commercial Trust & Savings Bank v. Pacific Coast Pipe Co.

• Decision Date: 03 May 1915
• Docket Number: 2452.
• Citation: 222 F. 781
• Parties: CONTINENTAL & COMMERCIAL TRUST & SAVINGS BANK v. PACIFIC COAST PIPE CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

222 F. 781

CONTINENTAL & COMMERCIAL TRUST & SAVINGS BANK v. PACIFIC COAST PIPE CO. et al.

No. 2452.

United States Court of Appeals, Ninth Circuit.

May 3, 1915

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

N. M Ruick, of Boise, Idaho, for appellant Pacific Coast Pipe Co. Levy Mayer and Charles L. Powell, both of Chicago, Ill., Richards & Haga, of Boise, Idaho, and Mayer, Meyer, Austrian & Platt, of Chicago, Ill., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge (after stating the facts as above).

The appellant contends that its lien was superior to that of the appellee's mortgage and had not expired as to the latter at the time it filed its cross-bill to foreclose. The court below held against the appellant upon the last proposition, and if it was correct in that ruling, it will be unnecessary for us, as it was for that court, to determine which was the prior lien.

Mechanics' and materialmen's liens do not exist under the common law, but are creatures of statute law only. Section 5110 of the Idaho Revised Codes gives to every person performing labor upon or furnishing materials to be used in the construction, alteration, or repair of any mining claim, building, wharf, bridge, ditch, dyke, flume, tunnel, fence, machinery, railroad, wagon road, aqueduct to create hydraulic power, or any other structure, a lien upon the same for work done or materials furnished. Section 5114 of the same statutes provides that such liens are preferred to other incumbrances attaching subsequent to the time when the structure was commenced or the work done or materials furnished. Section 5115 requires that any person claiming such a lien shall, within the period therein prescribed, file in the office of the county recorder of the county in which the property is situated his verified claim therefor, stating certain prescribed facts, and section 5118 is as follows: 'No lien provided for in this chapter binds any building, mining claim, improvement or structure for a longer period than six months after the claim has been filed, unless proceedings be commenced in a proper court within that time to enforce such lien; or, if a credit be given, then six months after the expiration of such credit; but no lien shall continue in force under this chapter for a longer period than two years from the time the work is completed, or credit given, unless proceedings to enforce the same shall have been commenced.'

The true construction of the first clause of the section just quoted is, we think, the controlling question in the case. As will be seen, it in effect expressly declares that no such lien given by the Idaho statute shall bind any structure to which it has attached for a longer period than six months after the claim has been filed, unless proceedings be commenced in a proper court within that time to enforce such lien. In other words, the remedy is by the statute made a part of the right created. It was so held in respect to an analogous statute, by the Supreme Court in the case of The Harrisburg, 119 U.S. 199, 214, 7 Sup.Ct. 140, 147, 30 L.Ed. 358. That was a suit in admiralty brought by the widow and child of one Rickards to recover damages for his death, caused by the alleged negligence of a schooner of which he was first officer. As no such suit could be maintained in the courts of the United States in the absence of an act of Congress or a statute of a state, the action depended wholly upon a statute of the state of Pennsylvania, which gave to the widow and child a cause of action therefor, but in doing so expressly declared that 'the action shall be brought within one year after the death and not thereafter. ' The Supreme Court in deciding the case expressly held:

'The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within 12 months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all.'

The applicability of that decision of the Supreme Court to the facts of the present case is not, we think, affected by the subsequent decision of the same court in the case of Bear Lake Irrigation Co. v. Garland, 164 U.S. 1, 17 Sup.Ct. 7, 41 L.Ed. 327. In that case there was a lien law of the state of Utah very similar to the statutory provisions of the state of Idaho, and there the question was, as it is here, between one who claimed a lien for work done and a trust company which claimed a mortgage lien upon the same property, the work there having been commenced by the contractor prior to the execution of the mortgage, and the statute in force at the time of the execution of the contract and of the commencement of the work requiring the claimant to commence an 'action to enforce his lien within ninety days from the time when he filed his claim for a lien. ' Before the expiration of the 90 days thus provided for, and, indeed, before the completion of the contractor's work or the filing of his claim of lien, the state of Utah passed, on the 12th day of March, 1890, another lien law, making provisions for the creation and enforcement of such liens, section 21 of which provided that:

'No lien claimed by virtue of this act shall hold the property longer than one year after filing the statement firstly described in section 10, unless an action be commenced within that time to enforce the same' (Laws 1890, c. 30)

-- and containing a clause formally repealing the old act, the latter having been passed in 1888. Notwithstanding such repeal, the Supreme Court construed the new statute as a continuation of the old one, with the modifications as provided in the new act, saying (164 U.S. 11, 17 Sup.Ct. 9, 41 L.Ed. 327):

'Upon comparing the two acts of 1888 and 1890 together, it is seen that they both legislate upon the same subject, and in many cases the provisions of the two statutes are similar and almost identical. Although there is a formal repeal of the old by the new statute, still there never has been a moment of time since the passage of the act of 1888 when these similar provisions have not been in force. Notwithstanding, therefore, this formal repeal, it is, as we think, entirely correct to say that the new act should be construed as a continuation of the old with the modification contained in the new act.'

And the court held that the 90 days allowed by the act of 1888 after the filing of the claim of lien, for the commencement of an action to enforce it, was extended by section 21 of the act of 1890 to one year, and that as such extension became effective before the work in that case was completed and the claim of lien filed, suit for the labor lien claimed was not required to be commenced before the expiration of one year from the time of the filing of the claim, the court saying:

'The two acts in question here are of a similar nature, relating to the same general subject-matter, and making provisions for the creation and enforcement of mechanic's liens. The new act of 1890, although in terms repealing the earlier act, is yet in truth, and for the reasons already given, a continuation of that act with the modifications as provided in the new one. One of those modifications is the extension of the time in which to commence the action to foreclose the lien after the filing of the statement which claims it. Where at the time of the passage of the new act the proposed lienor has only entered upon the execution of his contract and has not yet completed the work under it, we think that at least as to him the provision enlarging the time in which to commence the action to foreclose the lien is applicable, and there is no retroactive effect thereby given to that provision of the new act.

'It may be asked what effect is given under this construction to the language of the proviso contained in section 32 of the act of 1890, already quoted. The answer is that the mere enlargement of the time in which to commence the action, at least in a case where the time had not yet

...