Linden Inv. Co. v. Honstain Bros. Co.

• Decision Date: 17 February 1915
• Docket Number: 4072.
• Citation: 221 F. 178
• Parties: LINDEN INV. CO. v. HONSTAIN BROS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

221 F. 178

LINDEN INV. CO. v. HONSTAIN BROS. CO.

No. 4072.

United States Court of Appeals, Eighth Circuit.

February 17, 1915

Syllabus by the Court.

A mechanic's lien upon a building for its erection cannot be sustained under the laws of North Dakota, unless the person who contracted for its erection had some title leasehold, or other estate in the land on which the building was situated, or unless there were existing liens upon it when the labor or materials for which the lien is claimed were furnished.

When upon a hearing in a suit in equity the right to all equitable relief on a cause of action entirely fails, a court of equity is without jurisdiction to retain the case, try issues at law, and grant incidental or other relief thereon.

While No. 23 of the Equity Rules of 1912 (198 F. xxiv, 115 C.C.A. xxiv) authorizes the decision of a matter ordinarily determinable at law in a suit in equity when there is jurisdiction to grant equitable relief upon the cause of action in suit, it does not authorize such a determination when jurisdiction of the cause of action in equity has entirely failed, and section 723 of the Revised Statutes grants to each of the parties the right of the trial of the matter by a jury according to the course of the common law.

Edward Engerud, Daniel B. Holt, and John S. Frame, all of Fargo N.D. (George M. Price, of Langdon, N.D., on the brief), for appellant.

Rourke & Kvello, of Lisbon, N.D., for appellee.

Before SANBORN, ADAMS, and SMITH, Circuit Judges.

SANBORN Circuit Judge.

This is an appeal from a decree of foreclosure of two mechanics' liens upon two elevators in North Dakota situated respectively at Wales and at Mowbray. It is based upon a complaint upon two separate causes of action, one for the foreclosure of an alleged mechanic's lien upon the Wales elevator and the other for the foreclosure of a mechanic's lien upon the Mowbray elevator. Each cause of action is entirely separate and independent of the other. It is conceded in this court that there was no error in that part of the decree which establishes and forecloses the alleged mechanic's lien upon the Wales elevator, but the portion of the decree which adjudges the defendant below, the Linden Investment Company, a corporation, indebted to the plaintiff below, Honstain Bros. Company, a corporation, on account of the Mowbray elevator, establishes a mechanic's lien upon it, and adjudges a foreclosure thereof, is assigned as error upon two grounds: That the evidence does not sustain the conclusion that the Investment Company ever contracted with or employed the Honstain Company to build that elevator as alleged in the complaint, and that there was no averment in the complaint and no evidence at the hearing that the Investment Company ever owned or had any right, title leasehold, or other interest in the land on which the Mowbray elevator was situated.

In the view which the statutes of North Dakota and the decisions of the Supreme Court of that state have constrained us to take of the second objection, it is unnecessary to consider the first. A mechanic's lien is the creature of statute. If no statute authorizes it, it cannot be, and the construction by the highest judicial tribunal of the state of a statute of that state is, in the absence of any question of violation of the Constitution or acts of Congress of the United States, controlling in the federal courts. The statutes of North Dakota provide that any person who performs labor or furnishes materials for the construction of any building upon land under a contract with the owner of such land shall, upon filing his claim of lien, etc., according to the statutes of that state, have a lien upon such building and upon the land belonging to such owner on which the same is situated (Revised Codes of North Dakota 1905, Sec. 6237), that the entire land upon which any such building is situated shall be subject to all liens created by this chapter to the extent of all the right, title, and interest owned therein by the owner thereof (section 6243), and that 'every person for whose immediate use and benefit any building, erection or improvement is made, having the capacity to contract, including guardians of minors or other persons shall be included in the word 'owner' thereof' (section 6248).

Counsel for the Honstain Company cite the last section in support of their contention that the company is entitled to a mechanic's lien upon the Mowbray elevator in the absence of any title or interest of the Investment Company in the land upon which it stands. This section 6248 has been in force in North Dakota since 1877. It was section 669 of the Code of Civil Procedure of 1877, section 4798 of the Revised Code of 1899, and section...