Crandall v. Irwin

• Decision Date: 04 February 1942
• Docket Number: 28692.
• Citation: 39 N.E.2d 608,139 Ohio St. 253
• Parties: CRANDALL v. IRWIN et al.
• Court: Ohio Supreme Court

39 N.E.2d 608

139 Ohio St. 253

CRANDALL v. IRWIN et al.

No. 28692.

Supreme Court of Ohio

February 4, 1942

Judgment Adhered to on Rehearing March 25, 1942.

See 40 N.E.2d 933.

Appeal from Court of Appeals, Ashtabula County.

Syllabus by the Court.

1. A proceeding to foreclose a mechanic's lien is an action in rem.

2. Under Section 8323-3, General Code, in any proceeding to enforce a statutory mechanic's lien, service may be made by publication as in civil actions.

3. Where the limitation of time is an inherent part of a right unknown to the common law and created by statute, time is of the essence, and there is no right unless the action or proceeding to enforce such right is commenced within the statutory limit. A lapse of the statutory period operates to extinguish the right altogether.

4. Where an action to enforce a mechanic's lien is not commenced within the time limited in Section 8321, General Code, the right to such lien is lost, as such lien terminated by force of the act which created it.

5. The saving clause of Section 11228, General Code, may not be invoked to extend the six-year life prescribed for a mechanic's lien by Section 8321, General Code.

On October 18, 1935, plaintiff sought foreclosure of a mechanic's lien which had been filed with the county recorder on November 22, 1929, for materials and labor, the last of which had been furnished on the 27th day of September, 1929. No service on the owners, D. D. Irwin and Alice E. Irwin, was obtained within 60 days. However, on November 12, 1937, a qualified waiver of summons and entry of appearance of the owners was filed.

On July 31, 1936, defendant building and loan company filed an answer and cross-petition, seeking foreclosure of a mortgage on the same premises on which the mechanic's lien had been filed. This mortgage was executed on October 1, 1929, and filed with the county recorder on October 2, 1929.

In the third defense of the answer, the building and loan company set up the following:

'This defendant further says that if plaintiff did obtain a lien on said premises, it continued to be a lien for only six years from November 22, 1929, the time of the filing of plaintiff's said affidavit, and plaintiff has failed to legally commence this action to enforce said lien within said six-year period, in that, although the petition herein was filed October 18, 1935, and an attempt made a procure service of summons, such attempt was not followed by service within sixty days thereafter.'

Plaintiff filed a reply putting this defense in issue.

The Court of Common Pleas found that plaintiff, in performing the work and furnishing the materials as alleged in his first cause of action, was a contractor within the meaning of the mechanic's lien law of Ohio, and that by reason of his failure to allege and prove the making out and giving to the owner of the premises described in his second cause of action the statement under oath required by Section 8312, General Code, no lien upon the premises was obtained by plaintiff and the issue raised by the building and loan company's third defense, therefore, became immaterial to the determination of this case.

Plaintiff thereafter perfected an appeal on law and fact to the Court of Appeals of Ashtabula county, where plaintiff was granted leave to file an amended pleading to conform to his evidence showing that two contracts had been made with the owners, one for labor and one for materials.

The Court of Appeals held that the time for bringing the action had been extended by the saving clause of Section 11228, General Code, and that for the materials furnished, plaintiff below had a valid first lien on the premises in question.

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

David L. Fish, of Ashtabula, for appellant.

Howard M. Nazor and O. V. Anderson, both of Ashtabula, for appellee.

TURNER Judge.

The decision of this case depends upon whether the six-year limitation contained in Section 8321, General Code, is a limitation not only on the remedy, but of the right as well. Stated differently, may the saving clause of Section 11228, General Code, toll the limitation contained in Section 8321?

Section 8321, General Code, provides: 'The several liens herein provided for shall be liens from the date the first labor was performed, or the first machinery, materials, or fuel, was furnished by the contractor under the orginal contract, and shall continue for six years after said affidavit is filed in the office of the county recorder. If the action be brought to enforce such lien within that time, it shall continue in force until final adjudication thereof * * *.' (Italics ours.)

In the case of C. C. Constance & Sons v. Lay, 122 Ohio St. 468, 172 N.E. 283, this court held:

'Our mechanic's lien law contains the provision that the same shall be liberally construed in so far as it is remedial, but this does not justify the relinquishment of a mandatory requirement of the law respecting the perfection of a lien. This statute confers an extraordinary right in derogation of the common law, and, though liberality with reference to errors in procedure is permissible, the steps prescribed by statute to perfect such lien must be followed, and in that respect the law is strictly construed and applied.'

In the case of Mahoning Park Co. v. Warren Home Development Co., 109 Ohio St. 358, 142 N.E. 883, this court held:

'The character, operation, and extent of a statutory lien must be ascertained from the statute creating and defining it. Such statute cannot be amended or extended by judicial construction to meet a situation not provided for nor contemplated thereby. The remedy is legislative.'

In the case of Bonte v. Taylor, 24 Ohio St. 628, in passing upon the time within which an action had to be brought under the Act of March 29, 1867, 64 Ohio Laws, 75, this court held:

'1. A petition filed in such action, which shows on its face that the statutory period for the continuance of such lien had expired before the commencement of the suit, does not state facts sufficient to constitute a cause of action.

'2. * * * This statute, unlike the statute of limitations, does not limit the time within which an action may be brought upon an existing cause of action, but limits the period for which the lien, itself, as a cause of action, shall continue.'

See, also, Pittsburgh, C. & St. L. Ry. Co. v. Hine, Adm'x, 25 Ohio St. 629; Errett, Gdn., v. Howert, 78 Ohio St. 109, 84 N.E. 753; McVeigh v. Fetterman, 95 Ohio St. 292, 116 N.E. 518; McCord v. McCord, 104 Ohio St. 274, 135 N.E. 548; and Beach v. Union Gas & Electric Co., 130 Ohio St. 280, 199 N.E. 181.

The following quotation from 19 Am. & Eng. Ency. Law (2 Ed.), 150, was quoted with approval by Judge Davis in Errett, Gdn., v. Howert, supra, [78 Ohio St. 109, 84 N.E. 754], and is reproduced in 25 Ohio Jurisprudence, 426:

'A wide distinction exists between pure statutes of limitation and special statutory limitations qualifying a given right. In the latter instance time is made an essence of the right created, and the limitation is an inherent part of the statute or agreement out of which the right in question arises, so that there is no right of action whatever independent of the limitation. A lapse of the statutory period operates, therefore, to extinguish the right altogether.'

In 37 Corpus Juris, 974, Section 354, it is said:

'Fraudulent concealment of a cause of action does not toll the statute where the latter creates the right and makes the cause of action conditional upon suit being brought within a specified time.'

In 36 American Jurisprudence, 153, Section 241, it is said:

'An action to enforce a mechanic's lien, like all other actions, must be brought within the time prescribed by statute. Whether the right to the lien is lost by failure to commence the action within the time prescribed by statute depends upon whether the particular statutory provision is a statute of limitations or a statute limiting the duration of the lien. The courts of most jurisdictions treat such statutes as statutes limiting the duration of the lien. Consequently, it is generally held that the failure to enforce the lien within the time prescribed by statute is not waived by failure to raise such objection by demurrer or answer.

'Whether a...