Culmer v. Hooper-Caine

• Decision Date: 09 June 1900
• Parties: G. F. CULMER, WILLIAM H. CULMER, AND H. L. A. CULMER, PARTNERS, PLAINTIFFS v. ANNIE HOOPER-CAINE, CORA HOOPER, F. M. WRIGHT, DUVALL & MILLS, F. W. KRAFFT, W. F. CADY AND F. W. GRAY, DEFENDANTS
• Court: Utah Supreme Court

61 P. 1008

22 Utah 216

G. F. CULMER, WILLIAM H. CULMER, AND H. L. A. CULMER, PARTNERS, PLAINTIFFS v. ANNIE HOOPER-CAINE, CORA HOOPER, F. M. WRIGHT, DUVALL & MILLS, F. W. KRAFFT, W. F. CADY AND F. W. GRAY, DEFENDANTS

Supreme Court of Utah

June 9, 1900

Appeal from the Third District Court Salt Lake County. Hon. Ogden Hiles, Judge.

Action to foreclose mechanic's lien. From a judgment in favor of the plaintiffs and certain defendants, the defendants Caine and Hooper appealed and the defendants Duvall and Mills prosecuted a cross appeal. Decree of the District Court affirmed and the cross appeal dismissed.

Appeal dismissed.

Messrs Rawlins, Thurman, Hurd & Wedgwood, for appellants Caine and Hooper.

Sub-contractors can have no higher or greater rights against the owner than the contractor. The contract with the latter measures and limits the rights of both. Phillip Mec. Liens, Secs. 58, 62 143; Boisot on Mec. Liens, Sec. 228.

There is a fatal variance between the allegations of the cross-complaint, which sets forth a special written contract specifying the contract price, and the notice of lien, (a) the former is a claim by individuals, the latter by a partnership; (b) the former sets up an express contract to pay $ 16,636.00, the latter claim for labor and material, (a quantum valebant), $ 18,363.58, "which was the reasonable value thereof." And the notice is not signed or verified by the plaintiffs, or either of them. Boisot Mech. Liens, Sec. 560; Malone v. Min. Co., 76 Cal 578.

The notice of lien is strictly construed. Phillip Mech. Liens Sec. 20.

It is sought by parol testimony to supplement and explain the notice of lien--to make it cover the contract sued on.

That fatal defects cannot be so cured. Boisot Mech. Liens, Sec. 440.

The notice only specifies stone and brick work and plastering. Extra work or laying cut stone are not mentioned.

While work or material furnished under separate contracts may be embraced within a single notice, as to each contract, the notice must set forth a correct abstract of indebtedness, and must be filed within forty days after the time when the last work was done or material furnished under each. Central Trust Co. v. Ry., 54 F. 598; Laws 1890, p. 26, Sec. 11.

The proposition is fundamental that no court can enter a judgment against any one or his estate until after due notice by service of process to appear and defend. Hollingsworth v. Barbour, 4 Pet. (U.S.) 466; see also Pennoyer v. Neff, 98 U.S. 714; Harkness v. Hyde, 98 U.S. 476; St. Clair v. Cox, 106 U.S. 350.

The acknowledgment of the receipt of a copy of the answer and cross-complaint did not amount to a voluntary appearance by Wright, nor confer upon the court jurisdiction of his person. Butterworth v. Hill, 114 U.S. 128; 2 Ency. Pl. & Prac., 638-9.

Messrs. Breeze & Burris, and Messrs. Dey & Street, for respondents Duvall & Mills.

The claim of a fatal variance between the cross-complaint and the notice of lien is imaginary.

The cross-complaint is entirely consistent with the statement of lien.

(2) Our statute is broadly favorable towards liberal construction of notices; (a) Sec. 14. "It shall be sufficient to address either of said notices to all whom it may concern, and any informality in any such statement that shall not tend to mislead, shall not affect the validity thereof." (b) Sec. 14 continues: "No incorrect estimate in any such statement of the amount due, or to become due, * * * shall affect the validity of any such statement, unless such incorrect estimate be made in bad faith." See Phillips' Mechanic's Liens, Sec. 355.

In California service of a cross-complaint for affirmative relief against a co-defendant, was allowed even after an appeal to the Supreme Court, where that court ordered a new trial. Hibernia Savings & L. Co. v. Fella, 54 Cal. 598.

Sec. 3258 2 Comp. Laws 1888, and Sec. 3008 Rev. Stat. 1898, provide: "The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect."

Jurisdiction of the persons of the defendants was acquired by the service of the original summons, and jurisdiction of the subject-matter of the lien-claim of Duvall & Mills was acquired by the filing of the answer and cross-complaint. 16 Am. & Eng. Enc. Law, 791-2.

After Wright accepted service of the summons a service by mail upon him of any subsequent paper in the case was sufficient. 2 Comp. Laws 1888, Sec. 3677; Luck v. Luck, 83 Cal. 576.

MINER, J., delivered the opinion of the court. BARTCH, C. J., and BASKIN, J. concur.

OPINION

MINER, J.

STATEMENT OF FACTS.

On May 2, 1890, F. M. Wright, principal contractor, contracted with defendants Caine and Hooper, to erect the Hooper Block in Salt Lake City, at a total contract price of $ 49,874. Respondents Duvall & Mills contracted with Wright to do the foundation work, rubble stone work and brick work for $ 16,636, to be paid at 85 per cent. weekly estimates, the final payment to be made when the contract was completed. Subsequently other contracts were made for work on the building. The work was completed on March 1st, 1891. Duvall & Mills, the joint contractors, filed a lien for $ 2812.31, and served notice of the same upon Caine and Hooper and Wright. On December 15, 1891, the plaintiffs Culmer Brothers, filed an action against the appellants Caine and Hooper and F. M. Wright, principal contractor, and Duvall & Mills sub-contractors, and the cross-complainants in said action, and others for the foreclosure of a mechanic's lien which they claimed upon the property on which the Hooper Building was erected, and on the 2d day of January, 1892, said plaintiffs filed a supplemental complaint for the foreclosure of the mechanic's lien, alleged to have been assigned to them by the defendant F. W. Krafft. In the meantime, however, after the filing of the service of the Duvall & Mills' notice of lien, and while the time for the bringing of a suit thereon had not expired, the defendants Caine and Hooper, with actual notice that Duvall & Mills claimed a lien, effected a settlement of all matters arising out of the construction of said Hooper Block upon disputed items of account between themselves and F. M. Wright, by paying a compromise sum to Wright in July 1891.

On February 1, 1892, the cross-complainants, Duvall & Mills, filed their answer and cross-complaint, to the said supplemental complaint of plaintiffs, and claimed a lien upon said property to secure the payment of $ 2,812.81, the balance due them. The cross-complainants failed to serve said cross-complaint, or any copy thereof, upon the defendants Hooper and Caine, until the 1st of October, 1896, and until said time they were not aware of and had no notice that the said cross-complaint had been filed, or of the pendency thereof, and in the meantime Wright, the principal contractor, had become insolvent and had left the state, and his sureties had also become insolvent. No service of the cross-complaint was made upon Wright, but in October, 1896, the attorneys for the cross-complainants mailed him a copy of the cross-complaint at Butte, Montana, and he accepted service on the back thereof, as follows: "Received a copy of the within answer and cross-complaint. (Signed) F. M. Wright."

Defendants Caine and Hooper, in October, 1896, moved to dismiss the cross-complaint on account of laches and want of prosecution, which was overruled by the court.

Upon the trial of the cause the lower court rendered its judgment and decree in favor of said cross-complainants, Duvall & Mills, and against the appellants Cooper and Caine for the sum of $ 1,798.20, and costs, but without interest, from which judgment and decree the said appellants appeal to this court.

After stating the facts, MINER, J., delivered the opinion of the court.

The appeal in this case is taken from the judgment. No bill of exceptions was settled, or testimony returned.

1. Appellants first contention is that the cross-complaint does not set forth the contract between Wright, the contractor, and the owners of the property, Caine and Hooper, either in terms or legal effect, and no compliance with the terms of the contract is alleged as required by Sec. 2, and 10, Ch. 30, Sess. Laws, 1890, p. 25.

Upon an examination of the record we find that the cross-complaint was amended so as to obviate the objection made, and that as amended it was in compliance with the statute of 1890, prior to the change in its provisions in 1894, as held in Morrison v. Inter-mountain Salt Co., 14 Utah 201, 46 P. 1104. The case of Morrison, Merrill & Co. v. Willard, 17 Utah 306, 53 P. 832, was applicable to Sec. 1372 R. S. 1898.

It is true that the sub-contractor can have no higher or greater right against the owner than the contractor. The contract with the latter measures and limits the rights of both. Boisot on Mech. Liens, Sec. 228; Phillips on Mech. Liens, Secs. 58, 62, 143.

2. Appellants also contend that no compliance with the provisions of the contract requiring that the work was to be done to the satisfaction of the architect, to be evidenced by his certificate is shown.

With reference to this objection the court found that Duvall &amp Mills, the cross-complainants, "fully completed all work contracted to be performed on said building, under said sub-contract, in accordance with the requirements and terms of said sub-contract on the 1st day of March, 1891." This is a finding of the ultimate facts which included within its terms a certificate from the architect, and rendered it unnecessary for a finding of the particular evidentiary facts with reference to the actual proof of...