Kerns v. Flynn

• Decision Date: 24 October 1883
• Citation: 51 Mich. 573,17 N.W. 62
• Court: Michigan Supreme Court
• Parties: KERNS v. FLYNN.

17 N.W. 62

51 Mich. 573

KERNS v. FLYNN.

Supreme Court of Michigan

October 24, 1883

The objection that a petition for the enforcement of a mechanic's lien does not implead necessary parties, may be taken in the answer thereto, or at the hearing; and it is not lost by putting in an answer after demurring.

In proceedings by subcontractors to enforce a mechanic's lien, the original contractors must be brought in as parties since the contract relation and state of accounts between the defendant and the original contractors, and between the original and subcontractors, must be adjudicated before the lien can be established, and the rights and liabilities of the parties be ascertained.

Appeal from Saginaw.

Wm. S Tennant, for defendant.

GRAVES C.J.

This petition was filed to enforce a mechanic's lien, and the circuit court in chancery dismissed it for want of necessary parties, and the petitioners, refusing to amend, appealed to this court. They allege in their petition an agreement made on the second of October, 1882, with the defendant by Charles Witham and Frank Demire, by which the latter agreed to build him a dwelling-house and furnish the materials for $520, and they, the petitioners, count upon a claim arising out of a subcontract with Witham and Demire. The objection in the court below was that the original contractors, Witham and Demire, were necessary parties. The reply given to the petition was by demurrer and answer. It is now argued that the answer overruled the demurrer. The latter, we are told being for want of parties, applied to the whole bill, and hence could not possibly co-exist with an answer. It is needless to inqure in regard to the accuracy of defendant's practice in following his demurrer by the answer. The matter is devoid of practical importance here and we are not called on to discuss the effect of our rules. The exception in question may be taken in the answer or at the hearing. The requirement of necessary parties cannot be annulled by putting in an answer which trips up a demurrer. Upon the main question there is no doubt.

The case of subcontractors involves inquiry into the contract relations and state of accounts existing between the defendant and the original contractors, and into the contract relations and state of accounts existing between said original contractors and the subcontractors. Both kinds of inquiry are indispensable. It is a fundamental implication...