Crescent Elec. Supply Co. v. Nerison
| Decision Date | 01 August 1975 |
| Docket Number | 11405 and 11407,Nos. 11398,s. 11398 |
| Citation | 232 N.W.2d 76,89 S.D. 203 |
| Parties | CRESCENT ELECTRIC SUPPLY COMPANY, a corporation, Plaintiff, Respondent and Appellant, v. Ove A. NERISON et al., Appellants and Respondents, v. CREIGHTON TV SERVICE, Respondent, v. INTERSTATE ELECTRIC SUPPLY COMPANY, INC., Respondent and Appellant, v. AUDINO CONSTRUCTION COMPANY et al., Defendants. |
| Court | South Dakota Supreme Court |
Robert C. Heege, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for Crescent Electric Supply Co., plaintiff, respondent and appellant.
Robert L. O'Connor, Sioux Falls, for Ove A. Nerison, and others, appellants and respondents.
Robert J. McDowell, Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for Creighton TV Service, respondent, and Interstate Electric Supply Co., respondent and appellant.
This mechanic's lien case has involved several parties, some of them no longer concerned with the matter. Crescent Electric Supply Company is a wholesaler with a place of business at Sioux Falls. From December of 1970 through mid-May of 1971 it supplied materials to West Electric Company, Inc., for electrical work being done in the construction of Tower Apartments. It appears that Tower Apartments in turn paid West Electric some.$19,000 which West Electric in turn applied to its other outstanding accounts at Crescent Electric but not to its Tower Apartments account. In due time West Electric went into bankruptcy. Crescent Electric filed a mechanic's lien against Tower Apartments and brought an action to foreclose. It joined as defendants in addition to Tower: Creighton TV Service, Interstate Electric Supply Company, Inc., Audino Construction Company, Swenson Plumbing and Heating, Day Excavating and Northwestern National Bank of Sioux Falls. Either before or at the trial Audino Construction Company, Swenson Plumbing and Heating and Day Excavating were released as parties. Northwestern National Bank put in no answer.
The case was tried to the court in April and May of 1973 at Sioux Falls. The court rendered its opinion on August 27, 1973 and judgment was entered October 9, 1973. Crescent Electric was awarded slightly more than seven thousand dollars with interest from May 20, 1971. Creighton TV Service was awarded just over one thousand dollars with interest from July 14, 1971. The claim of Interstate Electric was denied. The court also refused Crescent Electric's request for attorney's fees and it reduced its claim by nearly three hundred dollars in light of additional materials furnished by another firm to complete the Tower job.
Tower Apartments appealed and Crescent Electric cross appealed. Interstate Electric has also appealed. Numerous issues have been raised. They include the validity of the liens of Crescent Electric, Creighton TV Service and Interstate Electric on statutory grounds, the denial of attorney's fees, the court's reduction of Crescent's claim, and the constitutionality of our mechanic's lien process. Because of failures of Crescent Electric, Creighton TV Service and Interstate Electric to comply with the plain and simple requirements of our state's mechanic's lien filing law, we reverse the lower court's decision as to Crescent Electric and Creighton TV Service and affirm as to Interstate Electric.
It has been argued that issues not raised at or before trial cannot be treated with on appeal. While this is generally the law it does admit of exceptions. See Pine Grove Nevada Gold Mining Co. v. Freeman, 1946, 63 Nev. 357, 171 P.2d 366. The objection matters not for it is not applicable to the case before us. In ruling on a motion to amend Interstate's mechanic's lien claim at trial the court, Sua sponte, said:
'It appears to the Court that there is a question of whether or not several of these mechanic's liens were filed in conformity to our statute, and I call your particular attention to SDCL 44--9--16, and the subsequent statutes relating to the filing of mechanic's liens.' (TR. 120)
The Court later ruled on the defects in all three lien claims and these rulings were subsequently attacked in the assignments of error. The issues in question are therefore all properly before us on review without resort to any extraordinary review powers. Because the failure of Crescent Electric, Creighton TV and Interstate Electric is dispositive of each party's case it will be unnecessary to deal with the constitutional question raised.
In dealing with the filing of mechanic's lien claims SDCL 44--9--16 requires, Inter alia, that
'(s)uch statement shall be made by or at the instance of the lien claimant, shall be verified by the oath of some person shown by such verification to have knowledge of the facts stated, and shall set forth:
(7) An itemized statement of the account upon which the lien is claimed.'
The verification section of the standard printed mechanic's lien claim form filed by Crescent Electric Supply Company reads as follows:
'STATE OF SOUTH DAKOTA
County of Minnehaha ss.
E. E. Benner, being first duly sworn, say (sic) that he is Manager of Crescent Electric Supply Company the lien claimant mentioned in the foregoing statement; that he has read said statement and knows the contents thereof; that he has knowledge of all the facts therein stated, and that said statement is in all respects true.
/s/ E. E. Benner
Subscribed and sworn to before me this 3rd day of August, 1971.
/s/ E. E. Benner
Manager
(Name of Office)
'STATE OF SOUTH DAKOTA
County of Minnehaha ss.
On this 3rd day of August, 1971, before me personally appeared E. E. Benner, Manager of Crescent Electric Supply Co., known to me to be the person described in and that he executed the within and foregoing instrument, and acknowledged to me that he executed the same.
/s/ Robert C. Heege
Notary Public
(Name of Office)
ROBERT C. HEEGE
Notary Public, South Dakota
My Commission Expires
February 20, 1976.'
The printed mechanic's lien claim form of Creighton is filed in the name of Herbert I. Creighton and signed by an attorney as 'Attorney For Lien Claimant.' The verification section of that form appears to be devoid of any entries in the blanks. There are no signatures on the lines provided, either the claimant's signature or the signature of the officer administering the oath. In other words, no attempt was ever made to complete or verify the claim.
The question posed by the Interstate Electric claim form concerns the 'customer's ledger' page which is appended to the claim form. It reads as follows:
There is no easily understood indication given on this ledger page of either the ultimate destination of the goods sold or of the number and nature of the materials involved. The sheet contains merely a heading with names of seller and purchaser, dates, folio numbers, debits, credits and a running balance.
We will first take up the claim form of Crescent Electric. There is no question that our state statute SDCL 44--9--16 requires lien claims to have been verified by oath before filing. There is also no serious question concerning the meaning of that requirement. The first definition assigned to the word 'verify' by Black's Law Dictionary is 'To confirm or substantiate by oath.' A verification is Bell and Zajicek, Inc. v. Heyward-Robinson Company, 1962, 23 Conn.Sup. 296, 182 A.2d 339. The requirement of a verified claim was made in order to frustrate frivolous claims. Farmers Cooperative Company v. Brown, 1974, S.D., 214 N.W.2d 89. One would expect the solemnity of an oath to evoke the utmost care on the part of the claimant, at least to the extent that proper parties are named, correct amounts claimed only legitimate debts itemized and statutory filing requirements conformed to. It is true that long ago this Court held:
'The mechanic's lien law was designed for the protection of a meritorious class of persons, whose material or labor has contributed to create and bring into existence the buildings or improvements upon which the lien is claimed * * * and should therefore receive a liberal construction, to effect, as far as...
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