Hobbs v. Spiegelberg

Decision Date31 January 1884
Citation5 P. 529,3 N.M. 357
PartiesHOBBS and othersv.SPIEGELBERG and others.POST and othersv.SAME.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Appeal from Second judicial district court, Bernalillo county.

There is concurrent jurisdiction in law and equity on the subject of liens.

Fiske & Warren and A. J. Barr, for appellees.

S. M. Barnes, for appellants.

AXTELL, C. J.

These were suits in chancery to foreclose mechanic's liens. The questions raised in both are essentially the same, and they will be considered together. The principal assignments of error in this court are- First, that the notice of lien does not comply with section 6 of the act of 1880 as to filing the claim in the office of the county recorder, in this, that it does not use the words of the statute. Second, that it is not proved that defendants were indebted to the contractor; and, as these plaintiffs were subcontractors, it must be shown that defendants were indebted to the contractors before a subcontractor can recover. Third, these proceedings ought to have been actions at law instead of bills in equity. These are substantially all the assignments of error.

On the first point it is claimed that the notice of lien filed with the recorder was fatally defective, because it failed to use the exact and full language of the statute, in that the notice omitted to state that the amount claimed was due after allowing all just credits and offsets. The language used is as follows: “And that there remains due and unpaid thereon, after deducting all credits, the sum of five hundred and seven (507) dollars.” The statute provides “that the person claiming the benefit of this act must file for record *** a claim containing a statement of his demands, after deducting all just credits and offsets, *** which claim must be verified by the oath of himself or some other person.” This claim is simply the account of the laborer or material-man. It might be filed for record simply in the form of ordinary book-keeping, showing on one page the debits, on the opposite page the credits, striking a balance, and alleging under oath that the amount there stated was due. The words of the statute need not be followed if the substance is preserved. He who considers merely the letter of an instrument goes but skin deep into its meaning.” The purpose of the law is to give notice of the amount claimed, and this, we are of opinion, was fully accomplished in the present instance. It not only asserts that there remains due and unpaid the sum of $507, but-and we think it surplusage-says it remains due and unpaid after deducting all credits. We fail to see how it could remain due and unpaid if it had been paid. The purpose of the statute is accomplished when the person claiming a lien files within the prescribed time, for record in the proper office, a sworn statement of the amount due him, together with the other facts required to be stated in section 6 of the act of 1880. All these facts may be stated in ordinary language, and sworn to before any officer authorized to administer an oath. It is said in defendant's brief that this statute is in derogation of the common law, and must be strictly construed. We fail to see how this statute is in derogation of the common law; nor is it possible for us to see any necessity for construction. The directions of the statute are exceedingly minute and explicit, and can easily be followed by any man of ordinary education and intelligence.

The second assignment of error is that it does not appear that defendants were indebted to the contractor, and that, therefore, he cannot be compelled to pay a subcontractor, material-man, or laborer, as he was not primarily indebted to them, their contracts having been solely with the principal contractor, and there being no privity of contract between the owner of the ground and building (this defendant) and the laborers and subcontractors, and that unless the defendant owes the contractor...

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6 cases
  • Furr's Supermarkets v. Richardson & Richardson
    • United States
    • U.S. Bankruptcy Court — District of New Mexico
    • September 20, 2004
    ... ... Hobbs v. Spiegelberg, ... Page 784 ... 3 N.M. 357, 5 P. 529, 3 N.M. (Gild.) 357 (1885) ...          c. Attachment of Mechanic's Liens to ... ...
  • Cubit Corp. v. Hausler
    • United States
    • New Mexico Supreme Court
    • August 25, 1992
    ...to be charged.' " Vulcraft v. Midtown Business Park, Ltd., 110 N.M. 761, 765, 800 P.2d 195, 199 (1990) (quoting Hobbs v. Spiegelberg, 3 N.M. 357, 363, 5 P. 529, 531 (1885)). Although in derogation of the common law, the lien statute is remedial in nature, equitable in its enforcement, and i......
  • Vulcraft, a Div. of Nucor Corp. v. Midtown Business Park, Ltd.
    • United States
    • New Mexico Supreme Court
    • October 25, 1990
    ...labor, services, skill, or materials furnished, have enhanced the value of the property sought to be charged." Hobbs v. Spiegelberg, 3 N.M. 357, 363, 5 P. 529, 531 (1885). The statute creates privity of contract between the owner and those contributing to the enhancement of the property to ......
  • Wilger Enterprises v. Broadway Vista
    • United States
    • New Mexico Supreme Court
    • June 6, 2005
    ...labor, services, skill, or materials furnished, have enhanced the value of the property sought to be charged." Hobbs v. Spiegelberg, 3 N.M. 357, 363, 5 P. 529, 531 (1885). As applied to this case, the historical mechanism for imposing a lien has been straightforward. First, the statutes hav......
  • Request a trial to view additional results

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