Davis v. Arthur

• Decision Date: 02 March 1898
• Citation: 49 N.E. 739,170 Mass. 449
• Parties: DAVIS v. ARTHUR et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 449

49 N.E. 739

DAVIS v. ARTHUR et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1898

The report of the case by the justice trying the same is as follows: "On April 5, 1897, Joseph H. Davis of Boston, filed in this court his petition to enforce a mechanic's lien for labor performed and furnished under a contract with Arthur & Shaw, contractors, in the erection of a building on land in Boston, said building and land being owned by the estate of Abbott Lawrence, or by Peabody Foster, and Lawrence, as executors or trustees under the will of said Abbott Lawrence. The amount claimed by the petitioner was $1,333.50. The petition set forth that the petitioner ceased to labor on and furnish labor for said building on February 12, 1897, and that within 30 days from that date he duly filed his statement in the registry of deeds for the county of Suffolk. A precept was issued by said court on the day of the filing of the petition in the form prescribed by Acts 1888, c. 344, § 2, the return day whereof was the first Monday of May, 1897. Following is a copy of the officer's return upon said precept: 'Suffolk--ss.: Boston, April 17, 1897. By virtue of this precept, on the fifteenth day of April, 1897, I summoned the within-named Francis Peabody Jr., Reginald Foster, and John Lawrence, executors or trustees as within described, the alleged owners of the within-described premises, each to appear and answer at court as within directed, by delivering to each an attested copy of this precept. And on the same day, to wit, April 15, 1897, I notified Alan Arthur, one of the alleged debtors, that the petition named had been filed in said court, by delivering to him in hand an attested copy of the within precept; and on the same day I posted a like attested copy upon the building or structure named in said precept. And on said fifteenth day of April, 1897, I notified Ezekiel Van Noorden, E.W. Cox, and Charles E. Nutter, Martin Ribovich, and John White; and on the 17th day of April, 1897, I notified Arthur H. Seabury being all the creditors other than the petitioner whom I could find having liens of the same kind upon the same estate described within; that said petition had been filed in said court by delivering to said Ezekiel Van Noorden, E.W. Cox Charles E. Nutter, and Albert H. Seabury, to each in hand, an attested copy of this precept, and by leaving at the last and usual place of abode of said Martin Ribovich and John White, for each, an attested copy of this precept. And I have made diligent search for the within-named Gardiner H. Shaw, one of the alleged debtors herein named, and for any last and usual place of abode, tenant, agent, or attorney of his; but I have been unable to find either within my precinct, and I therefore could make no service of this precept upon said Gardiner H. Shaw. Francis Martin, Deputy Sheriff.' On May 10, 1897, Charles E. Nutter and Alfred H. Seabury filed their appearance in said cause, the following being a copy of the appearance slip: 'No. 10,757. Suffolk--ss.: Superior Court. Sitting, 1897. Joseph H. Davis, Plaintiff, v. Estate Abbott Lawrence, Defendant. In the above action I appear for Charles E. Nutter and Alfred H. Seabury, co-partners doing business under the firm name and style of Nutter & Seabury. George L. Wentworth, 53 State St.' On June 28, 1897, said Charles E. Nutter and Alfred H. Seabury, both of Boston, co-partners under the firm name and style of Nutter & Seabury, filed in said cause their petition, claiming a like lien upon said premises for labor performed and furnished upon said building by virtue of a contract with said Arthur & Shaw. Their intervening petition further set forth that said Nutter & Seabury ceased to perform labor on and furnish labor for said building on February 13, 1897, and that within thirty days thereafter they duly filed their statement in the registry of deeds for the county of Suffolk. The amount claimed by said Nutter & Seabury in their said intervening petition was $825.30. On July 6, 1897, the assignee in insolvency of said Arthur & Shaw, who had duly appeared, filed in said cause a motion that the petition of Nutter & Seabury be dismissed, for the following reasons: (1) Because it appears by said petition and the record thereof in said court that said petition was not brought until after the expiration of more than ninety days from the time when the petitioners ceased to perform, or to furnish the labor for which the petitioners claim to have a lien on the land and buildings mentioned in said petition; (2) and because the petitioners' lien, if any they ever had, was dissolved at the expiration of ninety days from the 13th of February,...