Mathers v. Connelly, 3723.

• Decision Date: 06 April 1948
• Docket Number: No. 3723.,3723.
• Citation: 58 A.2d 510
• Parties: MATHERS et al. v. CONNELLY et al.
• Court: New Hampshire Supreme Court

58 A.2d 510

MATHERS et al.

v.CONNELLY et al.

No. 3723.

Supreme Court of New Hampshire.

April 6, 1948.

Exceptions from Superior Court, Cheshire County; Wheeler, Judge.

Bill in equity by Olin Mathers and another against William Connelly and another to enforce a mechanic's lien on certain lumber. The court ruled that no lien was secured, and the plaintiffs bring exceptions.

Exceptions overruled.

Bill in equity to enforce a mechanic's lien on certain lumber under R.L. c. 264, §§ 14, 20. The plaintiffs claim a lien by virtue of their attachment made on November 9, 1946, because there was written on the face of the plaintiff's writ the following: ‘This attachment is made to secure a labor lien for labor performed from Nov. 1-Nov. 9, 1946.’ The writ neither described the lumber nor directed the officer to attach any specific property, although the lumber attached was that which the plaintiffs had cut and upon which they claimed their lien. The defendant's claims are based upon the fact that their attachments under writs containing the common counts were made on November 8th, 1946, the day before that of the plaintiffs.

The Court, before whom the case was heard after the statutory period for the duration of the lien had expired, ruled that no lien was secured as the plaintiff's writ contained no precept directing the attachment of any specifically described property. To this ruling the plaintiffs excepted. Further facts appear in the opinion. Transferred by Wheeler J.

Howard B. Lane, of Keene, for plaintiffs.

Edward C. Sullivan, of Keene, for defendants William Connelly and Herbert Brooks.

No appearance, for Northern Timber & Landscape Co., Inc.

BLANDIN, Justice.

The case of Ferns v. American Moore Peg Company, 81 N.H. 283, 125 A. 434, is decisive in favor of the defendants and the plaintiff's exceptions must be overruled. There the Court held that to secure a lien under the statute the plaintiff must ‘(1) state in his writ the purpose for which the suit is brought, § 17; (2) describe the property on which he claims the lien with reasonable accuracy, * * * and (3) direct the officer to attach it to preserve his lien. * * *’ The opinion then goes on to say: ‘While the plaintiffs stated in their writ that the suit was ‘brought for the purpose of securing a mechanic's lien,’ they did neither of the other things the court holds they must do to preserve their lien.' See also Goudie v. American Moore Peg Company, 81 N.H. 88, 91, 122 A. 349; ...