Jordan v. Deitz
| Decision Date | 07 December 1956 |
| Citation | 5 McCanless 77,296 S.W.2d 866,201 Tenn. 77 |
| Parties | Paul JORDAN et al. v. Charles W. DEITZ et al. 5 McCanless 77, 201 Tenn. 77, 296 S.W.2d 866 |
| Court | Tennessee Supreme Court |
William R. Weeks, Chattanooga, for appellants.
Eugene N. Collins, Chattanooga, for appellees.
There are two questions involved in this appeal: (1) Whether or not a materialman may enforce his lien as created under the chapter creating liens, Sections 64-1101, 64-1142, T.C.A. by attachment and subsequent sale of the property of the home owner where the home owner has made no contract with the purported materialman and the contractor is not before the court on personal service, and (2) whether or not the Chancery Court abused its discretion in dismissing the attachment of the property of the home owner, leaving the suit for a money judgment pending against the contractors when said contractors have never been brought before the court.
On October 20, 1954 the appellant doing business as the Northside Lumber and Supply Company and Red Bank Hardware Company filed his bill alleging that he had furnished materials to W. M. and W. D. Metcalf, doing business as the Northside Roofing and Supply Company, which materials were used in the improvements made on the house and lot owned by the appellee Deitz and wife.
An attachment was issued and levied on this house and the home owners were likewise served with a subpoena to answer. On October 22, 1954 the subpoena for the Metcalfs, the contractors, was returned 'not to be found in my county'.
On January 21, 1955, an alias subpoena to answer was issued for the Metcalfs. It was never served or returned. As far as the record shows no other process was ever requested or issued by or on behalf of the complainants, appellants here, except service by publication which will hereinafter be referred to.
On June 11, 1955, the home owners made a rule upon the complainants under Code Section 21-625, T.C.A. for the complainants to obtain personal service on the contractors. This was made some eight months after the suit had been originally filed.
On June 14, 1955, complainants moved and made known to the court by affidavit that the Metcalfs, the contractors, were not in Tennessee and could not be served.
On June 18, 1955 the complainants asked for an order of publication as to the Metcalfs, the contractors, but judgment on this request was reserved as to the sufficiency of this substituted service.
Some four months after the Deitzes had made a rule on complainants to obtain personal service on the contractors the court on October 5, 1955, entered an order making a peremptory rule on the complainants and dismissed the attachment of the property, but left the bill pending as to the contractors who had never been served.
On the following day, October 6, 1955, complainants filed a motion for a judgment pro confesso against the contractors and the home owners. On October 25, 1955, this motion was overruled and this appeal was taken.
Was the Chancellor correct in dismissing the cause as to the home owners, appellees here, because personal service of process was not made on the contractors who had contracted with the home owners when the home owners had no contract with the furnishers of the materials who were bringing the suit?
This question is controlled by a proper interpretation of our statute on the question. Section 64-1126, T.C.A. provides insofar as here applicable that:
'Liens under Secs. 64-1101-64-1142 shall be enforced by attachment only, in manner following:
'(1) Where the plaintiff or complainant lienor has a contract with the owner, * * *.
'(2) Where there is no such contract, by attachment in a court of law or equity in like manner; or before a justice of the peace, having jurisdiction, based upon like affidavit, the writ of attachment to be accompanied by a warrant for the sum claimed, to be served upon the contractor, or subcontractor in any degree, with whom the claimant is in contractual relation, as well as on the owner.'
Obviously the question presented is, does the italicized portion above quoted require the contractor to be before the court before a lien on the home owners' property can be enforced by attachment?
This question is fully annotated in 100 A.L.R. beginning at page 128. Under subsection (d) of the annotation our statute is covered. The annotater makes a statement as follows:
'A number of decisions have established as a general rule the proposition that--where, under statutory provisions or the general theory upon which the right of a subcontractor, laborer, or materialman to establish and enforce a lien against the property upon which the services were rendered or materials furnished, is based, the foreclosure of such lien involves the determination of the existence of an indebtedness, and the amount thereof, due from the principal contractor to the subcontractor, laborer, or materialman, the former is a necessary party.'
Under this division and discussion the annotater lists cases from many States including our case of Warner v. A. H. Yates & Co., 1907, 118 Tenn. 548, 102 S.W. 92, 93. The annotater says in reference to this case that:
'* * * since the principal contractor has the right to controvert the indebtedness claimed, there will be a failure of due process of law if he does not have his day in cour...
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Paschall's, Inc. v. Dozier
...296 S.W.2d 866, and Taylor v. Tennessee Lumber Co., 107 Tenn. 41, 63 S.W. 1130, both of which we take this opportunity to review. In Jordan v. Deitz, supra, among other things, this Court decided that in a suit by a subcontractor against a landowner, with whom there is no privity of contrac......
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Eatherly Const. Co. v. DeBoer Const. Co.
...right, and strict compliance with T.C.A. § 64--1115 is required. McDonnell v. Amo, 162 Tenn. 36, 34 S.W.2d 212 (1930); Jordan v. Deitz,201 Tenn. 77, 296 S.W.2d 866 (1956); Bird Bros. v. Southern Surety Co.,139 Tenn. 11, 200 S.W. 978 (1917). Notice of the claimed lien must be given to the pr......
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Christmas Lumber Co., Inc. v. Shell
...that without privity of contract with the owner a materialman was not entitled to a personal judgment against the owner. Jordan v. Deitz, 201 Tenn. 77, 296 S.W.2d 866; Taylor v. Tennessee Lumber Co., 107 Tenn. 41, 63 S.W. In the case of Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 1......
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