Interior Woodwork Co. v. Hackett, Hoff & Thierman, Inc.

• Citation: 163 Wis. 193,157 N.W. 772
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 02 May 1916
• Parties: INTERIOR WOODWORK CO. v. HACKETT, HOFF & THIERMAN, INC., ET AL.

163 Wis. 193

157 N.W. 772

INTERIOR WOODWORK CO.

v.HACKETT, HOFF & THIERMAN, INC., ET AL.

Supreme Court of Wisconsin.

May 2, 1916.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by the Interior Woodwork Company against Grant S. McEvoy and others. Judgment for plaintiff and defendant Hackett, Hoff & Thierman, Incorporated, appeals. Reversed and remanded, with directions.

Action to enforce mechanic's lien. Plaintiff commenced this action to enforce its claim for mechanic's lien against the property of the defendants McEvoy. The defendant Hackett, Hoff & Thierman, Incorporated, is a mortgagee, having a mortgage upon the same property upon which the lien is claimed, which mortgage is admittedly subsequent to the lien of plaintiff and other lien claimants. The trial court found for the lien claimants, gave judgment establishing their liens upon the property in question, and the mortgagee brings this appeal therefrom.J. O. Carbys and C. Doerfler, both of Milwaukee, for appellant.

E. J. Ludwig, Charles J. Weaver, Arthur Breslauer, and John H. Paul, all of Milwaukee, for respondent.

ROSENBERRY, J.

[1] There is but one question submitted for determination in this case. Under the provisions of chapter 213 of the Laws of 1913, amending section 3315, Stats., were principal contractors required to serve a notice within 60 days after performing work, labor, or furnishing material, stating the amount of the claim and the fact that a lien was claimed therefor? This depends upon the construction to be given to section 3315 as amended. Section 3315, Stats. 1913, is the result of an amendment of a prior law upon the same subject. By the amendment certain provisions of section 3315, Stats. 1911, were stricken out, and the section was rewritten in other particulars not involved in the determination of this question. The section as it stood before it was amended by chapter 213 of the Laws of 1913 was as follows, the words stricken out of section 3315 being printed in italics, the only change made in that part of the section material here being the omission of the italicized words:

“Section 3315. Every person who, as subcontractor of a principal contractor or as an employé of either, performs any work or labor for or furnishes any materials to either in any of the cases mentioned in the preceding section may have the lien and remedy given by this chapter if, within sixty days after performing such work or labor or furnishing such materials, he shall give notice in writing to the owner, or his agent, of the property to be affected by such lien, if to be found in the county, and if neither can be found therein, by filing such notice in the office of the clerk of the circuit court of said county, setting forth that he has been employed by such principal contractor or subcontractor to perform or furnish, and has performed or furnished, such work, labor or material, with a statement of the labor performed or materials...