Fisher v. Reamer

• Decision Date: 07 February 1961
• Docket Number: No. 859,859
• Court: West Virginia Supreme Court
• Parties: Richard B. FISHER v. Charles A. REAMER et al. C. C.

Page 76

118 S.E.2d 76

146 W.Va. 83

Richard B. FISHER v. Charles A. REAMER et al.

C. C. No. 859.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1961.

Decided Feb. 7, 1961.

Syllabus by the Court

In Code, 38-2-15, which provides that notice of a mechanic's lien may be given to a nonresident owner, or to an owner 'not found', by publication and posting, and which provides further that such publication and posting shall be sufficient if commenced 'within the period provided by this article for the filing of such notice,' the quoted language, when properly construed in relation to all other pertinent provisions of such article, means that such publication and posting shall be sufficient if commenced within the ninety-day period within which a claimant of such a lien is required to cause notice thereof to be recorded in the office of the clerk of the county court of the county wherein is situated the property on which such mechanic's lien is sought.

Roger J. Perry, Charles Town, for plaintiff.

Avey & Steptoe, Robert M. Steptoe, Martinsburg, for defendants.

CALHOUN, Judge.

The plaintiff, Richard B. Fisher, instituted a suit in the Circuit Court of Jefferson County to enforce a mechanic's lien pursuant to the provisions of Article 2 of Chapter 38, Code, 1931, as amended. Process commencing the suit was issued on June 7, 1960, returnable to July rules. After July 1, 1960, the effective date of the new rules of civil procedure for trial courts, the suit proceeded as an 'action' in accordance with the provisions of such rules. Subsequently, Charles A. Reamer and Barbara W. Reamer, two of the four defendants, the owners of the property upon which the lien is asserted, made a motion to 'dismiss the action because the complaint fails to state a claim against them upon which relief can be granted', for reasons or upon grounds which will be stated subsequently herein.

By an order entered on August 16, 1960, the court held that such motion was 'not well taken', and, accordingly, it was 'denied'. By the same order the court certified to this Court, pursuant to Code, 58-5-2, certain questions relating to the sufficiency of the complaint, which questions arose upon the motion to dismiss. By the same order a written opinion rendered by the trial court was made a part of the record.

On or about June 1, 1959, Charles A. Reamer and Barbara W. Reamer, husband and wife, then and thereafter residents of Arlington, Virginia, employed Wood Builders, Inc., to construct for them a cottage upon a lot in Blue Ridge Acres, a resort development in Jefferson County, West Virginia, which lot the Reamers were then purchasing from Blue Ridge Acres, Inc., upon an executory contract of sale and purchase. Wood Builders, Inc., the general contractor, subsequently engaged the plaintiff, Richard B. Fisher, as a subcontractor to furnish and install a general plumbing system for the cottage for an aggregate consideration of $736.50.

The motion to dismiss the complaint is based on two grounds, which are embodied in the following questions certified to this Court for decision:

'First: Whether a subcontractor, in order to perfect his mechanic's lien against a nonresident owner in accordance with Section 15, Article 2, Chapter 38 of the Code of West Virginia, must commence publication of his notice within sixty days after completion of his subcontract.

'Second: Whether a subcontractor's mechanic's lien against real estate of nonresidents is perfected when the subcontractor himself serves notice of his mechanic's lien upon the nonresident owners.'

In relation to the first question the trial court held that under the provisions of Code, 38-2-15, the subcontractor was permitted ninety days from the date of completion of his contract within which to commence the publication of notice to the nonresident owners. In relation to the second question certified the trial court pointed out that, in view of its ruling on the first proposition, a decision of the latter question was unnecessary; but the court, nevertheless, stated in its written opinion 'that the personal service upon the defendants is defective and will be quashed.'

The statutes of this state relating to mechanic's liens are found in Article 2 of Chapter 38 of the Code. Portions thereof, with italics supplied, are quoted below. Section 1 provides for a lien in favor of a general contractor. Section 2 provides for a lien in favor of a subcontractor. Section 7 is, in part, as follows: 'But the lien created and authorized by section one * * * of this article shall be discharged from and after ninety days from the completion of such contract, and the lien created and authorized by section two * * * of this article shall be discharged from and after sixty days from the completion of such subcontract, * * * unless within such respective periods, the claimant of any such lien shall have perfected and preserved the same, as hereinafter provided in this article.' Section 8 provides: 'For the purpose of perfecting and preserving his lien, any such general contractor as is mentioned in section one * * * of this article shall, within ninety days after the completion of his work provided for in such contract, cause to be recorded, in the office of the clerk of the county court of the county wherein such property is situate, a notice of such lien, which notice shall be sufficient if in form and effect' as therein prescribed. Section 9 provides:

'For the purpose of perfecting and preserving his lien, every such subcontractor mentioned in section two * * * of this article shall, within sixty days after the completion of his subcontract, give to the owner or his authorized agent, by any of the methods provided by law for the service of a legal notice or summons, a notice of lien * * *.

'But such lien shall be discharged and avoided, unless within ninety days after the completion of his subcontract as aforesaid such subcontractor shall cause to be recorded in the office of the clerk of the county court of the county wherein such property is situate a notice of such lien, * * *.'

Section 27 is, in part, as follows: 'It shall be the duty of the clerk of the county court of the county to enter every notice of lien mentioned in this article upon the filing in his office of such notice in a book by him to be kept for that purpose, * * *.' Section 15 deals with publication of notice to the owner of the real estate or improvement on which a lien is sought when such owner is a nonresident of the state or is not found, and it provides that it shall be sufficient under such circumstance 'to publish a copy of such notice for two successive weeks in some newspaper of general circulation in the county wherein the real estate lies, and to post a copy of such notice in a conspicuous place upon the property sought to be charged thereby, which publishing and posting shall be sufficient, if commenced within the period provided by this article for the filing of such notice * * *.' The time permitted to the plaintiff for the publication and posting of notice to the nonresident owners depends upon the proper construction of the phrase, 'within the period provided by this article for the filing of such notice.'

The plaintiff completed his work on October 3, 1959. The plaintiff himself served notice in person on Charles A. Reamer and Barbara W. Reamer, the property owners, in Virginia, on November 26, 1959, which was, of course, within sixty days after the completion of the plaintiff's work as subcontractor. On December 1, 1959, a true copy of the notice of mechanic's lien was posted in a conspicuous place upon the premises and a copy of such notice was published in a newspaper of general circulation in Jefferson County for two successive weeks, commencing on December 3, 1959. While the posting was done within sixty days after the completion of the plaintiff's work, it is conceded that the publication was commenced on the sixty-first day. On December 17, 1959, the plaintiff caused a proper notice of mechanic's lien to be recorded in the office of the Clerk of the County Court of Jefferson County. In other words, notice was served personally by the plaintiff on the property owners in Virginia within sixty days; the posting was within sixty days; the publication was commenced later than sixty days, but within ninety days; and the notice was duly recorded in the office of the clerk of the county court within ninety days.

Counsel for the plaintiff takes the view that the phrase 'the period provided by this article for the filing of such notice', refers to the ninety-day period permitted by section 9 for the recordation of the notice in the office of the clerk of the county court; and that the word 'filing', as thus used, is synonymous with and the equivalent of the word 'recording'. This also represents the basis of the trial court's decision. Counsel for the defendant property owners, on the other hand, insists that the language in question refers to the sixty-day period permitted to the subcontractor by Section 9 to 'give to the owner * * * a notice of such lien.' Counsel for the property owners insists further that Article 2, considered in its entirety, discloses an overall purpose and legislative intent to give the general contractor a period of ninety days within which to perfect his lien and to a subcontractor a period of but sixty days; and that the basis of such legislative intent is the protection of the property owner by affording him an opportunity to be fully advised of all claims of subcontractors before he is required to make final payment to the general contractor. Counsel for the plaintiff, on the other hand, insists that no such legislative intent is appearent from the whole of Article 2.

In perfecting his lien, the claimant of the the lien is required to comply only substantially with the pertinent statutory provisions. Code, 38-2-4; Gray Lumber Co. v. Devore, W.Va., 112 S.E.2d 457; ...