Hawkins v. Boyden

• Decision Date: 07 May 1903
• Citation: 55 A. 324,25 R.I. 181
• Parties: HAWKINS et al. v. BOYDEN.
• Court: Rhode Island Supreme Court

55 A. 324

25 R.I. 181

HAWKINS et al.

v. BOYDEN.

Supreme Court of Rhode Island.

May 7, 1903.

Petitions by Benonl Hawkins and others against George B. Boyden for the enforcement of a mechanic's lien. Heard on motions to dismiss, and motions denied.

Argued before STINESS, C. J., and TILLING HAST and DOUGLAS, JJ.

A. A. Baker and J. C. Collins, Jr., for Hawkins. Richard E. Lyman, for Grant. N. W. Littlefield, for Willmarth & MacKillop.

Raymond G. Mowry, for Rust. Comstock & Gardner, for trustee in bankruptcy. Van Slyck & Mumford, for respondent Boyden.

STINESS, C. J. These petitions to enforce liens were filed, respectively, November 3, 1902, November 19, 1902, November 20, 1902, and December 1, 1902. A trustee in bankruptcy of Boyden, appointed December 2, 1902, has appeared specially to move to dismiss the petitions. Boyden was adjudged a bankrupt November 21, 1902, and the title of the trustee to the property vested in him as of that date.

In the Hawkins case the motion to dismiss set out that the citation had not been served 20 days before the return day. A mistake having been made by the officer in the date of service, he was allowed to amend his return, thus showing 20 days' notice, which disposes of that motion.

In the Grant case the citation was duly served upon the trustee 20 days before the return day. It was not served upon Boyden, because his attorney agreed with petitioner's attorney, 20 days before the return day, to acknowledge service thereof, which he subsequently indorsed on the citation. The agreement was a waiver or an acknowledgment of service. The actual signing of the acknowledgment was simply evidence of it. It is therefore immaterial when this evidence was supplied—whether before or after the prescribed date—our rules requiring evidence in writing in such cases. Acknowledgment of service is submission to the jurisdiction of the court, and as effective as the service of process by an officer, unless otherwise prescribed by statute. In most states there is statutory provision. In this state we have no statute upon the subject, except as to nonresidents. Gen. Laws 1896, c. 240, § 20. It has, however, been the uniform practice of the court to recognize due service and jurisdiction by an acknowledgment thereof, or even by an appearance without objection. Gorman v. Stillman, 25 R. It 55, 54 Atl. 934; Vickerie v. Spencer, 9 R. I. 585. We are therefore of opinion that sufficient evidence of service of the citation appears.

The trustee argues that Boyden could not, by an acknowledgment of service after adjudication in bankruptcy, give a lien to the petitioners to the prejudice of the estate for general creditors. Without doubt, this is true, but the argument overlooks the distinction between the lien and the proceedings to enforce the lien. In Gen. Laws 1896, c. 206, the line is clearly drawn. The lien originates when the work begins, and it becomes operative when the first notice is given, and it will be lost unless it is followed up by legal process. The commencement of legal process consists in lodging the account in the town clerk's office, with notice to what land and buildings, and to what and whose estate, the demand refers. This notice is to inform the owner and the public of the nature and extent of the account for which the lien is sought. Hence an omission in that notice is substantial. Being a notice of claim of lien, whatever is omitted in it cannot be supplied by amendment. It would not operate as a notice if it could be extended by amendment. Harris v. Page, 23 R. I. 440, 50 Atl. 859; Murphy v. Guisti, 22 R. I. 588, 48 Atl. 944. These notices are jurisdictional. The petition filed in this court is not of that character. It is more like a declaration in a civil case, while the notices are like an attachment. A declaration is amendable, but a substantial defect in an attachment cannot be cured by amendment. Greene v. Tripp, 11 R. I. 424. Accordingly we held, in Murphy v. Guisti, supra, and Spencer v. Doherty. 17 R. I. 89, 20 Atl. 232, that the petition could be amended, and in Bouchard v. Gnisti. 22 R. I. 591, 48 Atl. 934, that the notice essential to the lien was not amendable. After the commencement of process by the recorded notice, a petition is filed, and notice of this petition is to be given to the owner by citation, and to others by publication.

The particular point made in this case is that, as the trustee does not hold title by conveyance (Gen. Laws 1896, c. 206, § 10), service on him is of no effect, in the absence of proper service on Boyden. Section 10 provides that a citation shall issue "to the owner of said property and to each and every person having a mortgage, attachment, or any other conveyance thereof, or of any part thereof, on record." This clearly shows two classes of persons—the "owner" and those having a qualified interest—for, if one had a "conveyance" of the whole interest, he would be the owner, and the provision would be tautological. One may become owner by inheritance or by operation of law. The conveyance therefore relates to a conveyance of a less interest. The lien has priority of any other lien which originates after the commencement of the erection or reparation on the land. The new work is supposed to be...