Diamond Nat. Corp. v. Dwelle

Decision Date03 April 1973
Citation164 Conn. 540,325 A.2d 259
CourtConnecticut Supreme Court
PartiesThe DIAMOND NATIONAL CORPORATION v. Edwin R. DWELLE et al.

Rocco R. P. Perna, Greenwich, for appellant (plaintiff).

Gordon R. Paterson, Stamford, with whom, on the brief, was James R. Fogarty, Jr., Stamford, for appellees (named defendant and others).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

The plaintiff, the Diamond National Corporation, brought an action to foreclose a mechanic's lien against the property of Edwin R. Dwelle and Dolores D. Dwelle, hereinafter called the defendants for materials furnished to the G & G Home Improvement Company and Gustavo Passarelli, general contractors hired by the defendants to construct an addition to their home located in Norwalk, Connecticut. The materials were furnished during the period from July 19, 1963, through October 24, 1963, and the plaintiff claimed their value was $7019.90. On or about November 1, 1963, and contractors abandoned the job prior to substantial completion and on December 20, 1963, the plaintiff filed a mechanic's lien on the property of the defendants. On November 24, 1965, an action was commenced to foreclose the lien and the case came to trial in April, 1970. On January 4, 1971, the action was dismissed by the court on its own motion for lack of jurisdiction over the subject matter, although the defendants had neither demurred to the complaint nor pleaded specially the Statute of Limitations.

The central issue in this appeal is whether the trial court was correct in dismissing the action for lack of jurisdiction over the subject matter. The basis of the court's decision was that § 49-39 of the General Statutes, as amended in 1965 by Public Act No. 193, established time limits on the validity of the mechanic's lien and that in failing to meet these limitations, the plaintiff lost his cause of action and the court consequently lost jurisdiction over the subject matter.

Before discussing the issues raised by the court's construction of § 49-39, it first must be determined whether the court was correct in deciding that the action was subject to § 49-39, as amended, which states in relevant part: 'No mechanic's lien shall continue in force for a longer period than four years after such lien has been perfected, unless the party claiming such lien commences an action to foreclose the same and files a notice of lis pendens in evidence thereof with the town clerk within two years from the date such lien was filed with such town clerk and then proceeds therewith to and obtains final judgment within the next two years from the date such action was commenced.' On October 1, 1965, Public Acts 1965, No. 193, became effective as an amendment to § 49-39 and it extended the maximum time limitation from two to four years and added the requirement that not only must the action be brought within two years but that it must be prosecuted to judgment within two years after it is brought. Prior to October 1, 1965, the statute had not set a time limit on the procurement of final judgment. See General Statutes, Rev. 1958, § 49-39. The amendment was enacted following the decision of the Court of Common Pleas in Stanley Svea Coal & Oil Co. v. Willimantic Savings & Loan Assn., 23 Conn.Sup. 329, 183 A.2d 285, a case in which the mechanic's lien had been created prior to the effective date of the amendment but the foreclosure action was commenced afterwards. The question then is whether § 49-39, as amended, applies to actions brought on the facts presented here. In Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 197, 286 A.2d 308, in considering § 49-39, as amended, we stated that 'the statute should not be construed as retroactive to pending actions.' (Emphasis added.) Since the foreclosure action in the case before us was brought in November, 1965, after the effective date of the amendment, it was not 'pending' and as a consequence does not come within the proscription of the Jones Destruction case, where the action had been brought prior to the effective date. We hold, therefore, that the trial court was correct in its determination that § 49-39, as amended, was applicable to this case.

' The general rule is that, where a statute gives a right of action which did not exist at common law and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right; it is a limitation of the liability itself as created, and not of the remedy alone.' DeMartino v. Siemon, 90 Conn. 527, 528, 97 A. 765. A mechanic's lien is a creature of statute and gives a right of action which did not exist at common law. Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., 99 Conn. 396, 403, 122 A. 102; comment, 'Mechanics' Liens in Connecticut,' 37 Conn.B.J. 209, 212. Since § 49-39 sets the time within which the action must be commenced, it would appear that the statute conforms with the general rule and is thus a limitation on the right. This conclusion is reinforced by Persky v. Puglisi, 101 Conn. 658, 666, 127 A. 351, where this court stated: 'The lien (under the forerunner of § 49-39) is a creature of the statute, and the General Assembly, which created the right, may set a limit to the term of its existence. . . . The plain intent of this statute is to clear the title to the premises, unless an action of foreclosure is brought within the time limited for the continuance of the lien. The phrase, 'no mechanic's lien shall continue in force,' is conclusive. . . . The lien of this defendant and the liens of others who failed to commence any action of foreclosure within the time limited by the statute, are no longer in force; as liens they have ceased to exist.' It is obvious from these statements that § 49-39 is not merely a limitation on the remedy which should be pleaded specially, but is a limitation on the cause of action itself. The plaintiff claims support for his contention that § 49-39 is a statute of limitation from Jones Destruction, Inc. v. Upjohn, supra, 161 Conn. 195, 286 A.2d 308. While it is true that there is language in the Jones Destruction case which states that the limitation is not on the right, this language is dictum and was unnecessary to the holding in the case. The Jones Destruction case was based solely on the conclusion that 'good sense and justice' (p. 197, 286 A.2d 308) dictate that the amended statute not be applied retroactively to an action of foreclosure actually pending on the effective date of the amendment.

At this point it might be argued that because the lien was limited by § 49-39 and was created by a different section, § 49-33, the general rule of construction stated above does not apply. This argument, however, is based on a misunderstanding of the general rule. Davis v. Mills, 194 U.S. 451, 454, 24 S.Ct. 692, 48 L.Ed. 1067, quoted with approval in Thomas Iron Co. v. Ensigh-Bickford Co., 131 Conn. 665, 669, 42 A.2d 145, stated that '(t)he common case (for application of the general rule) is where a statute creates a new liability, and in the same section or in the same act limits the time within which it can be enforced, whether using words of condition or not. . . . But the fact that the limitation is contained in the same section or the same statute is material only as bearing on construction. It is merely a ground for saying that the limitation goes to the right created, and accompanies the obligation everywhere. The same conclusion would be reached if the limitation was in a different statute, provided it was directed to the newly created liability so specifically as to...

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