Mouat v. Fisher

• Decision Date: 05 March 1895
• Citation: 104 Mich. 262,62 N.W. 338
• Court: Michigan Supreme Court
• Parties: MOUAT v. FISHER.

62 N.W. 338

104 Mich. 262

MOUAT v. FISHER.

Supreme Court of Michigan

March 5, 1895

Appeal from circuit court, Washtenaw county, in chancery; Edward D Kinnie, Judge.

Bill by John D. Mouat against Fred E. Fisher. From a decree for complainant, defendant appeals. Affirmed.

John P. Kirk, for appellant.

Bowen Douglas & Whiting, for appellee.

MONTGOMERY J.

This bill was filed in the circuit court for the county of Washtenaw, in chancery, to enforce a mechanic's lien under the provisions of Act No. 179 of the Public Acts of 1891. The complainant was an original contractor with the defendant, who was the owner of the land. The last of the lumber and material was furnished September 12, 1892. A verified claim of lien was filed in the office of the register of deeds October 13, 1892. On October 26th, the defendant signed a waiver of service, which read "October 26, 1892. I accept service of a copy of this note on me in lieu of posting the same on my building, within described, or other notice under the statute. F. E Fisher." The court below decreed a lien in favor of complainant, and defendant appeals.

It is claimed by defendant that under section 6 of the act, service of a copy of the claim of lien is necessary. This section provides, in substance, that the person filing such statement or account (referring to the statement in the preceding section) shall serve a copy of the same upon the owner, if he can be found within the county where the property is situated, within 10 days, but, if he cannot be found within the county within the 10 days, a copy may be served by posting the same in some conspicuous place on the premises within 5 days after the time limited for the personal service; and provides that proof of such service shall be made and filed with the register of deeds before any subsequent proceeding shall be taken for the enforcement of such lien. Under section 5, the claim of lien may be filed within 60 days from the date of the furnishing of the last material and labor. If it be held that the filing of this claim of lien is necessary to continue the lien in force as against the owner, where, as in the present case, the lien is asserted by the original contractor, and no rights of subsequent purchasers intervene (a point which we do not decide), we think it is clear that it was competent for complainant to file a lien at the date of the waiver of notice by defendant (Davis v. Schuler...