Malter v. Falcon Min. Co.

• Decision Date: 03 December 1883
• Citation: 2 P. 50,18 Nev. 209
• Parties: MALTER and others v. FALCON MINING CO.
• Court: Nevada Supreme Court

2 P. 50

18 Nev. 209

MALTER and others v. FALCON MINING CO.

Supreme Court of Nevada

December 3, 1883

The act relating to mechanics' liens should be liberally construed, but every material requirement should be complied with; and where a direct and unequivocal allegation of the name of the owner is wanting in the notice of the lien, such notice is radically defective, and no lien can be founded thereon.

Appeal from the Fourth judicial district court, Elko county.

W. E F. Deal, for appellants.

Rand & Dorsey, for respondent.

HAWLEY C.J.

This action was brought by appellants, as subcontractors of Morey & Sperry, to foreclose a mechanic's lien against the Falcon Mining Company. The district court sustained a demurrer, interposed by respondent, to the amended complaint dismissed the action as against it, and entered judgment in its favor for the costs. Respondent contends that the notice of lien attached to and made a part of the complaint does not in any respect comply with the requirements of section 5 of the act relating to mechanics' liens. St. 1875, p. 122. We will not notice all the various objections urged by counsel, as we are of opinion that one of the points presented is fatal to appellants' claim. We have repeatedly declared that the act relating to mechanics' liens should be liberally construed; that the spirit and purpose of the law is to do substantial justice to all parties who may be affected by its provisions; and that courts should "avoid unfriendly strictness and mere technicality." Skyrme v. Occidental M. & M. Co. 8 Nev. 221; Hunter v. Truckee Lodge, 14 Nev. 28; Lonkey v. Wells, 16 Nev. 274. This rule should always be followed when the objections urged serve only to perplex and embarrass a remedy intended to be simple and summary, without adding anything to the security of the parties having an interest in the property sought to be affected. But in following this rule, courts should always be careful not to impair the force of the statute or fritter away its meaning by construction. It must always be borne in mind that a mechanic's lien is purely of statutory creation, and that it can only be maintained by a substantial observance of, and compliance with, the provisions of the statute. It is "a remedy given by law, which secures the preference provided for, but which does not exist, however equitable the claim may be, unless the party brings himself within the provisions of the statute, and shows a substantial compliance with all its essential requirements." Phil Mech. Liens, § 89. Whatever is made necessary to the existence of the lien must be performed, or the attempt to create it will be futile. A substantial adherance to the terms of the statute in the notice of lien is indispensable. The omissions, if any, in the notice and claim as recorded, cannot, in essential particulars, be aided by any averments in the complaint, or by extrinsic evidence. Bertheolet v. Parker, 43 Wis. 551.

Under the provisions of section 5 of the act relating to mechanics' liens, it is, among other things, essential to the validity of the lien that the name of the owner, or reputed owner, of the building, improvement, or structure upon which the lien is sought to be enforced, should be stated. The notice of lien in this case does not substantially comply with this positive requirement of the statute. It declares that it is the intention of the claimants "to hold and claim a lien upon *** that certain Howland pulverizing and wet crushing and amalgamating mill, situated in Rock creek, on the millsite owned or claimed by the Falcon Mining Company, in Elko county, state of Nevada." There is no statement that the Falcon Mining Company is the owner, or the reputed owner, of the mill. The question of ownership is left to inference only, and the inference to be drawn from such a statement that the Falcon Mining Company is the owner, or reputed owner, of the property, may or may not be true. It does not necessarily follow that because the company claims to be the owner of the mill-site, that it is the owner, or reputed owner, of the mill erected thereon. Moreover, the statement that the Falcon Mining...