Duby v. Hicks

Citation105 Or. 27,209 P. 156
PartiesDUBY ET AL. v. HICKS.
Decision Date25 July 1922
CourtSupreme Court of Oregon

Appeal from Circuit Court, Grant County; Dalton Biggs, Judge.

Suit by J. J. Duby and another, partners under the firm name of Duby & Caul, against Errett Hicks. From decree for plaintiffs defendant appeals. Reversed and remanded, with directions.

This suit was brought pursuant to the provisions of sections 10272-10278, Or. L., to foreclose an alleged lien against an automobile belonging to defendant, upon which plaintiffs claimed to have performed work and furnished material. Plaintiffs had decree as prayed for. No demurrer was interposed or objection made in the lower court to the sufficiency of the complaint, nor was the same amended. The answer contained no reference to the lien except to refer to it in the following words:

"Admits the allegations contained in paragraphs * * * 5 * * * of plaintiffs' complaint."

Section 10273 provides that the lien notice shall be verified, and "shall state the name of the claimant, the name of the owner, or reputed owner, a description of the chattel sufficient for identification, upon which the claimant has expended labor, skill, and material, the amount for which the lien is claimed, and the date upon which such expenditure was completed." It also provides that the lien notice "may be in substantially the following form." The form set forth by the statute closes with these words:

"That the amount claimant demands for said labor, skill, and materials so expended is $_____; that no part thereof has been paid except $_____, and there is now due and remaining unpaid thereon, after deducting all just credits and offsets, the sum of $_____, in which amount he claims a lien upon said property."

The only reference to the lien sought to be foreclosed to be found in the complaint is this language:

"5. That thereafter, and on the 23d day of July, 1919, less than sixty days after the rendition by plaintiffs of said labor, skill, and material upon said automobile, and the delivery thereof to the owner, or his duly authorized agent, plaintiffs prepared and caused to be filed in the office of the county clerk of Baker county, Or., in which said county said labor, skill, and material were expended on said automobile, a lien notice, which said notice did state the names of the plaintiffs as lien claimants, the name of the owner or reputed owner of said automobile, a description of the same sufficient for identification, and the date upon which such expenditure was completed, which said notice was duly verified by oath of these plaintiffs and by which the lien of these plaintiffs for said labor skill, and material became effectual."

McCourt McBride, and Bean, JJ., dissenting.

Geo. H Cattanach, of Canyon City, for appellant.

Nichols & Hallock, of Baker, for respondents.

RAND, J. (after stating the facts as above).

The defendant contends that the complaint does not state facts sufficient to constitute a cause of suit. The plaintiffs contend that the complaint is good after decree, and this is the only question necessary for decision.

A complaint which seeks to foreclose a lien must affirmatively allege the facts upon which the validity of the lien depends. "It must affirmatively appear from the complaint that the notice filed contained all the essential provisions required by statute; that it was proper in form, verified as required, and filed within the time prescribed." Pilz v. Killingsworth, 20 Or. 432, 437, 26 P. 305, 306; Coffey v. Smith, 52 Or. 538, 540, 97 P. 1079; Equitable Savings & Loan Ass'n v. Hewitt, 55 Or. 329, 335, 106 P. 447; Craig v. Crystal Realty Co., 89 Or. 25, 32, 33, 173 P. 322; Christman v. Salway (Or.) 205 P. 540, 547.

It was therefore necessary for the complaint to allege, and for the plaintiffs to prove, a substantial compliance with all of the essential requirements of the statute, and that the lien notice, as filed, contained every statement which, by the terms of the statute, must appear upon the face of the lien notice. If the complaint failed to allege any such fact, then the complaint failed to state a good cause of suit. An inspection of the complaint discloses that it fails to allege that any of the statements above quoted from section 10273, which said section requires to be stated in the lien notice, were stated therein. The lien claimed was purely a statutory lien, and the sole relief sought was its foreclosure. Being a creature of the statute, its validity depended entirely upon a substantial compliance with the terms of the statute which created it. The statute having expressly directed that certain prescribed statements must be contained in the lien notice, there could be no compliance with the statute unless those statements were contained therein. Without a substantial compliance with the statute the right to a lien was lost.

It is essential to the validity of a lien of this character that the lien shall be a charge upon property for the payment of a debt, and the right which the statute confers is to have that debt satisfied out of a particular chattel. It must be obvious to every one that, unless there was some debt to be secured, in the nature of things there could be no lien. Under the provisions of our statute, a valid lien notice must disclose that a debt does exist, and must show the amount of the debt for which the lien is claimed, and, if the lien notice fails to disclose those facts, the lien is invalid.

The complaint in this case affirmatively alleged the facts disclosed by the lien notice in question, but from the allegations of the complaint it appears that, in the notice as filed, there was no statement of the amount for which the lien was claimed, or that the plaintiffs were entitled to a lien for any amount. No allegation or fact was stated in any pleading of the defendant by which the allegation missing from plaintiffs' complaint was supplied or the defect cured. Neither the original lien notice nor a certified copy thereof was offered or received in evidence. There is, therefore, neither allegation nor proof that the lien notice contained those statements which, by the statute, are essential to the existence of a lien. The complaint, therefore, was fatally defective, and did not state a cause of suit.

There is a marked distinction between an imperfect or defective statement in a pleading of the facts which go to make up a cause of action, and which, because not properly pleaded, makes the pleading subject to demurrer or motion, and a pleading which fails to state some material and essential fact which goes to the gist of the action, and must be pleaded in order to constitute a cause of action. In the first instance, if the pleading is not moved against or demurred to, the defect will be cured by verdict, while in the other the defect is not cured by verdict, nor is it ever cured at all unless the adverse party in his pleadings has alleged or admitted the omitted fact. The present case clearly falls within the latter class. It was necessary, under the statute, that the lien when filed should contain a statement of the facts recited in section 10273. The complaint alleges that certain other statements required by section 10273 were recited in the lien, but not the ones above referred to. It thus in effect affirmatively appears from the complaint that these statements were omitted from the lien, and, being omitted, the lien was invalid; or, if not omitted therefrom, then, as the complaint failed to allege that these facts were stated in the lien notice, the complaint failed to allege a necessary and material fact, without which it failed to state a cause of suit.

The law on this subject is so well settled in this state that the question presented here is no longer open. In fact, we know of no question that has been more frequently considered and discussed, or one upon which the decisions of this court have been more uniform, or where the prevailing law on the subject in other jurisdictions has been more in accord with the decisions of this court, than the one presented in the present case.

"A verdict will cure an imperfect statement, or the omission of formal allegations, although it will not supply a total omission to state some fact essential to the cause of action." Madden v. Welch, 48 Or. 199, 200, 86 P. 2.
"A verdict aids an informal statement of facts in a pleading, but will never supply a material averment that goes to the gist of the action." Philomath v. Ingle, 41 Or. 289, 292, 68 P. 803, 804.
Where the complaint "fails to state facts sufficient to constitute a cause of action," or suit, the "defect is never waived or cured" by a verdict or decree. Keene v. Eldriedge, 47 Or. 179, 181, 82 P. 803, 804.
"If a material allegation going to the gist of the action is wholly omitted, it cannot be presumed that any evidence in reference to it was offered or allowed on the trial, and hence the pleading is not aided by the verdict." Madden v. Welch, supra.
"The general rule in such case is 'that whereever facts are not expressly stated which are so essential to a recovery that, without proof of them on the trial, a verdict could not have been rendered under the direction of the court, there the want of the express statement is cured by the verdict, provided the complaint contains terms sufficiently general to comprehend the facts in fair and reasonable intendment." Nicolai v. Krimbel, 29 Or. 76, 84, 43 P. 865.
"Now, a verdict will cure all mere formal defects in the pleadings, and will aid a defective statement of a good cause of action or defense, although it will not cure the omission of a material allegation." Creecy v. Joy, 40 Or. 28, 32, 66 P. 295, 297.
"3. Where no motion or demurrer has been interposed to a pleading, every
...

To continue reading

Request your trial
16 cases
  • Fulton Ins. Co. v. White Motor Corp.
    • United States
    • Supreme Court of Oregon
    • February 2, 1972
    ...and necessary allegation has been held fatal. Johnson v. School Dist. No. 12, 210 Or. 585, 589, 312 P.2d 591 (1957); Duby v. Hicks, 105 Or. 27, 209 P. 156 (1922); Booth v. Moody, 30 Or. 222, 46 P. 884 (1896); Ball v. Doud, 26 Or. 14, 23--24, 37 P. 70 (1894). Failure to allege the Griffins' ......
  • Jeffries v. Pankow
    • United States
    • Supreme Court of Oregon
    • September 30, 1924
    ......190, 144 P. 401;. Minter v. Minter, 80 Or 369, 157 P. 157; Winn v. Taylor, 98 Or. 556, 190 P. 342, 194 P. 857; Duby et. al. v. Hicks, 105 Or. 27, 209 P. 156. . . The. provision in the contract of sale which entitled the. ......
  • McCormack v. Bertschinger
    • United States
    • Supreme Court of Oregon
    • June 30, 1925
    ...... the plaintiff has demanded a personal judgment against the. defendant, yet, as said by Mr. Justice Rand in Duby v. Hicks, 105 Or. 27, 30, 209 P. 156, 158, "the lien. claimed was purely a statutory lien, and the sole. relief" to which the ......
  • Columbia Auto Works, Inc. v. Yates
    • United States
    • Supreme Court of Oregon
    • March 20, 1945
    ...upon the merits wherein the defendant appeared by attorney, filed an answer alleging defenses and participated in the trial. Duby v. Hicks, 105 Or. 27, 209 P. 156, is a case wherein the complaint affirmatively alleged that certain facts were disclosed by the lien notice in question; but fro......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT