Nelson Weaver Mortg. Co. v. Dover Elevator Co.

• Decision Date: 21 November 1968
• Docket Number: 3 Div. 192
• Parties: NELSON WEAVER MORTGAGE COMPANY, Inc., et al. v. DOVER ELEVATOR COMPANY.
• Court: Alabama Supreme Court

Page 716

216 So.2d 716

283 Ala. 324

NELSON WEAVER MORTGAGE COMPANY, Inc., et al. v. DOVER ELEVATOR COMPANY.

3 Div. 192.

Supreme Court of Alabama.

Nov. 21, 1968.

Geo. I. Case, Jr., and McGowen & McGowen, Birmingham, for appellants.

Albert W. Copeland and Godbold, Hobbs & Copeland, Montgomery, for appellee.

PER CURIAM.

Appellee, Dover Elevator Company, filed its bill of complaint in the circuit court of Montgomery County, in equity, to enforce an alleged mechanic's lien against certain property and the improvements thereon, which was owned by respondent Frontier, Inc., and upon which the respondents-appellants, Nelson Weaver Mortgage Company, Inc., and Cobbs, Allen and Hall Mortgage Company, Inc., held mortgages.

The facts, although in dispute on some points, show the following:

Frontier, Inc., is a real estate development and promotion corporation which acquired a tract of land on the corner of Court and High Streets in the City of Montgomery, Alabama, upon which it began to construct a building, referred to in the trial below, as the Miller Building. It is upon this land and building that the appellee, Dover Elevator Company, sought to establish a lien. Dover Elevator Company, on February 5, 1963, submitted a written contract, to Frontier, Inc., in which it agreed to install an elevator in the building. This contract, dated February 5, 1963, was formally accepted by Frontier, Inc. on February 25, 1963. Construction on the building began on the 1st of February, 1963, and Dover Elevator Company first began its work around the last of the month. On March 8, 1963, appellant, Nelson Weaver Mortgage Company, Inc., advanced twenty-five thousand dollars ($25,000) to Frontier, Inc., on a note and a mortgage which was recorded on March 15, 1963. The total amount of money loaned under the mortgage was $131,173.03. Appellant, Cobbs, Allen and Hall Mortgage Company, Inc., loaned Frontier, Inc., a total of $38,200 under a second mortgage, dated August 26, 1963. The work on the building by the appellee continued until approximately October 1, 1963, when the job was shut down due to the insolvency of Frontier, Inc. On October 10, 1963, Dover Elevator Company filed the statutory statement of lien in the office of the Judge of Probate of Montgomery County. In this lien statement, appellee averred that there was owing to it $32,000, with interest from to-wit, February 5, 1963. On November 4, 1963, Dover Elevator Company filed this bill to enforce its alleged mechanic's lien and to establish its priority.

The appellants, in their brief, argue 15 out of the 16 assignments of error set out in the transcript. However, some of these assignments are argued jointly, and there are only eight questions raised by appellants to be decided.

(1)

The main thrust of the appellants' argument is that this action was barred by the Statute of Limitations. This contention is based upon an averment in the statement of lien filed by the appellee in the Probate Judge's office, which alleges that the lien is claimed to secure an indebtedness of $32,000, with interest from, to-wit, February 5, 1963. In order to determine the validity of the appellants' contention, it is necessary to set out the law relevant to the issue involved. Title 33, § 42, of the Code of Alabama, in pertinent part, states as follows:

'The lien declared in this article shall be deemed lost unless the statement referred to in the preceding section shall be filed by every original contractor within six months * * * after the last item of work or labor has been performed or the last item of any material, fixture, engine, boiler or machinery has been furnished * * * and any suit for the enforcement thereof must be commenced within six months after the maturity of the entire indebtedness secured thereby, except as in cases hereinafter provided for.'

The preceding section referred to in the above-quoted section requires that a verified statement be filed in the office of the Judge of Probate by the person claiming the lien. Title 33, § 41, Code of Alabama, 1940.

The first contention of the appellants, in arguing the applicability of the Statute of Limitations, is that the lien statement itself was filed too late, and therefore the lien was lost. They contend that the inserting of the date of February 5, 1963, into the lien statement, establishes the date of the maturity of the debt, and that any materials furnished or labor performed after this date must be amended into the present lien statement, or included in a different lien statement.

In support of this contention, appellants cite Home Federal Savings & Loan Association v. Williams, 276 Ala. 37, 158 So.2d 678; and Cutcliff v. McAnally, 88 Ala. 507, 7 So. 331. We think that these cases are distinguishable from the present case, and are not controlling. In Home Federal Savings & Loan Association v. Williams, supra, the court did not hold that the lien was lost because of a late filing of the lien statement, but that it was lost because, under the undisputed evidence, the claimant did not commence suit within six months of the maturity of the indebtedness. In Cutcliff v. McAnally, supra, the evidence itself showed that no materials were furnished or labor performed within the six months prior to the filing of the lien statement. In the present case, a different situation is presented. The appellee's complaint alleges, and the evidence shows, that materials were furnished and labor was performed by the appellee within the six months prior to his filing the lien statement. The evidence further shows that the date, February 5, 1963, was the date of the contract between the complainant Dover Elevator Company and respondent, Frontier, Inc., and not the date of the maturity of the indebtedness. The question thus presented is whether the mistaken averment in the lien statement filed by appellee in the probate office, as to the maturity of the indebtedness, is fatal to the appellee's perfecting a mechanic's lien. We think that it is not.

In Cook v. Rome Brick Company, 98 Ala. 409, 414-415, 12 So. 918, 919-920, the court held as follows:

'It is not essential to the perfecting of plaintiff's lien that the statement filed for record in the office of the judge of probate should show that it was filed within four months after the indebtedness had accrued. The statute required it to be filed within that time and that it was so filed must, as we have seen, be averred in the complaint and proved on the trial, but the statute does not require the statement which is filed to set forth the fact that it was filed within the time limited or facts showing that it was so filed; and the conclusion that the statement need not itself show that it is filed within the statutory limitation is further aided by the fact that the contents of the claim required by the statute are therein stated and this is not among them. * * *'

Since it is not necessary for the complainant to allege in the lien statement that the said lien statement was filed within the time limitation, it would seem to follow that a mere mistake in alleging the date would not be fatal to his perfecting a lien, if no one was prejudiced thereby. In the present case, there was no showing that the error was made intentionally by appellee, or that the appellants suffered any prejudice or injury therefrom. This is in accord with the general rule in other states. 57 C.J.S. Mechanics' Liens § 169a, p. 714; Harrington Bros. v. City of New York, D.C.N.Y., 51 F.2d 503, 505; Florida New Deal Co. v. Crane Co., 142 Fla. 471, 194 So. 865, 866, 867.

The second contention of the appellants in arguing that the six months Statute of Limitations is applicable in this case, is that the appellee did not commence suit within six months after the maturity of the indebtedness. However, here again, the basis of appellants' argument is that the averment, in the lien statement filed by the appellee as to the date of the maturity of the indebtedness is controlling. As has been stated above, we do not hold this contention valid, and where there has been no showing of injury to the appellants, the true date of the majority of the indebtedness may be shown at the trial.

In their brief, appellants cite Estes Lumber Co. v. Investors' Syndicate, 223 Ala. 408, 137 So. 31, 32, 33, as controlling on this point. However, we think that this case is to be distinguished from the present case. In the Estes case, not only did the lien statement filed in the probate office contain an averment as to the date of the maturity of the indebtedness, it was also alleged in the bill of complaint. In addition, the proof also showed that the last delivery of materials was on the date averred, and further that an attorney who was the authorized agent of the complaint stated, to the attorney of the respondent, that the lien had been lost. In upholding the decree of the chancellor, which denied the establishment of a lien on the property, the court stated:

'* * * we are of the opinion the decree rendered was Justified by the proof, and it will accordingly be here affirmed.' (Emphasis supplied.)

In the present case the only averment as to the maturity date of the indebtedness was contained in the lien statement filed in the office of the judge of probate. The proof, however, showed that materials were delivered and labor continued up to the date on which the lien statement was filed in the judge of probate's office. The proof also shows that this suit was commenced by appellee less than a month after the filing of the lien statement. Therefore, the proof in this case, unlike the proof in Estes Lumber Co. v. Investors' Syndicate, supra, shows that the appellee did, in fact, comply with the Code section requiring the filing of suit within six months of the maturity of the indebtedness. Code of Alabama, Title 33, § 42, supra.

(2)

The next contention of the appellants is that there was no money judgment rendered against Frontier,...