Keeley Lumber & Coal Co. v. Dunker

• Decision Date: 29 June 1956
• Docket Number: No. 9558,9558
• Citation: 76 S.D. 281,77 N.W.2d 689
• Parties: KEELEY LUMBER AND COAL COMPANY, Inc., Plaintiff and Respondent, v. Marvin H. DUNKER and Gladys I. Dunker, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 689

77 N.W.2d 689

76 S.D. 281

KEELEY LUMBER AND COAL COMPANY, Inc., Plaintiff and Respondent, v. Marvin H. DUNKER and Gladys I. Dunker, Defendants and Appellants.

No. 9558.

Supreme Court of South Dakota.

June 29, 1956.

Chas. E. Gorsuch, Aberdeen, for defendants and appellants.

Campbell, Voas & Richardson, Aberdeen, for plaintiff and respondent.

ROBERTS, Presiding Judge.

Defendants Marvin H. Dunker and Gladys I. Dunker and the fee owners of a quarter section of land in Brown County, the property here involved. A contract was entered into with one Ray Zweber for the construction of an elevator on this land for the approximate cost of $22,000. The contractor purchased materials of plaintiff which were used in erecting the elevator. Within the statutory period, plaintiff filed a mechanic's lien statement against the property and this action was commenced to enforce the lien. Defendants answered alleging that they with knowledge of the plaintiff paid the contractor for all labor and materials furnished; that the lien was invalid and unenforceable because plaintiff had not served on the owners a sworn account and notice of its claim as required by statute; and that plaintiff in its lien statement demanded amounts which it knew were not true and correct and that this invalidated the lien. The court made findings and conclusions determining plaintiff's lien against the premises to be the sum of $6,036.46, plus interest and costs. Defendants have appealed.

A mechanic's lien is purely a creature of statute. Squier v. Mitchell, 32 S.D. 342, 143 N.W. 277. The existence and continuance of the lien as well as the jurisdiction of the court to enforce it depend upon compliance with the statute. Botsford Lumber Co. v. Schriver, 49 S.D. 68, 206 N.W. 423; Stoneberger v. Davis, 74 S.D. 300, 51 N.W.2d 873. Under the provisions of SDC 39.0701, a materialman to be entitled to a lien must have furnished the materials 'at the request of the owner or the duly authorized agent or representative of the owner, or of any contractor or subcontractor'. It is contended that in determining the meaning of this language we must consider the change that was made in the 1939 revision. The provisions referred to were derived from Section 1643, Rev.Code 1919, which provided that a materialman had a lien for materials contributed to the improvement of real property 'whether under a contract with the owner of such real estate or at the instance of any agent, trustee, guardian, contractor, or subcontractor, of such owner'. The contention is that under the present statute there must be a direct relationship between the owner and lien claimant. We think that this contention is without merit. The 1939 revision does not indicate an intention that materialmen protected are only those who furnish materials directly under contract with the owner, and not indirectly under contract with the builder or contractor.

SDC 39.0703 provides that any person described in Section 39.0701 as entitled to a lien may serve a sworn account and notice of his claim and thereupon the owner shall withhold from his contractor so much of the contract price as may be necessary to meet the claim. This remedy is cumulative and is separate and distinct from the procedure for retaining and enforcing a lien upon the property. The claim of invalidity of the lien because plaintiff did not serve such a notice upon defendants cannot be sustained.

Defendants assert that the lien sought to be foreclosed was of no force or effect because plaintiff demanded an amount that was more than was just and due for materials furnished. The court found that the lien statement included items amounting to $107.08 for which plaintiff was not entitled to a lien; that these overcharges resulted from mathematical errors and items of materials that were not ordered for the improvement here involved; and that plaintiff did not intentionally claim more than was justly due. It has been held that the inclusion in a mechanic's lien statement of non-lienable items does not in the absence of bad faith destroy the lien. Wittrock v. Hall, 51 S.D. 39, 211 N.W. 801. Defendants rely on Bohn Mfg. Co. v. Keenan, 15 S.D. 377, 89 N.W. 1009, and E. S. Gaynor Lumber Co. v. Morrison, S.D., 60 N.W.2d 83. In these cases the court found that the materialmen demanded in their lien statements amounts which they knew were not just and true for the purpose of defrauding the owners. The evidence in the instant case sustains the finding to the effect that plaintiff did not knowingly file a lien statement for an excessive amount.

Defendants urge that because the contractor Ray Zweber or the trustee in bankruptcy of his estate was not joined as a defendant there is a defect in parties. Parties have long been classified as necessary and proper. Necessary parties defendant are those without whom a complete determination or settlement of the questions involved cannot be made. SDC 33.0409. A proper party defendant is a person having no real interest in the questions at issue, but who has some interest in the controversy or subject matter of the suit which is separable from the interests of the other parties before the court. 67 C.J.S., Parties, Sec. 1(f).

As to the foreclosure of a mechanic's lien SDC 39.0713 provides in part as follows: 'The action to foreclose the lien may be commenced by any lienholder who has filed his lien statement as required in this chapter, and all other such lienholders who are not joined with him as plaintiffs shall be made defendants. Any such lienholder not named as a defendant may nevertheless answer the complaint and be admitted as a party. All parties having liens under this chapter may join as plaintiffs, if they so desire, prior to the commencement of any action by a single lienholder. Upon the application of the plaintiff, or...