Ohio Plate Glass Co. v. Paskin, 125806

Decision Date17 August 1965
Docket NumberNo. 125806,125806
Citation4 Ohio Misc. 136,209 N.E.2d 640
Parties, 33 O.O.2d 179 OHIO PLATE GLASS COMPANY, Plaintiff, v. Milton PASKIN et al., Defendant.
CourtOhio Court of Common Pleas

Shaman, Winer, Shulman & Ziegler, by Paul Ziegler, Dayton, for plaintiff.

Jerome T. Miller, Dayton, for defendant James Howe.

McBRIDE, Judge:

The question in this case is whether a mechanic lien holder, who files an action upon the account and for foreclosure of the lien following a sixty-day notice to commence suit, may amend his second cause of action to one upon a bond after the sixty-day period upon his discovery that a bond had been filed with the recorder under R.C. § 1311.11.

It is to be noted that R.C. § 1311.11 contains independent provisions. One provides for the notice to commence suit. The second provides that if notice to commence suit is filed, the owner may file a bond and obtain a release of the lien. The statute requires service of the notice to commence suit; it fails to require notice of the posting of the bond.

The final paragraph of R.C. § 1311.11 provides for the release of the surety upon the failure to commence suit within sixty days or, if the claimant filed suit within such period, upon dismissal of such suit or upon satisfaction of the judgment.

In the instant case the claimant did commence suit on the lien within sixty days but did so by way of foreclosure upon the discharged lien and not upon the bond that was substituted therefore. After the sixty-day period elapsed he filed an amended petition substituting the bond in place of the real estate.

The defendant owner and bondsman take the position in their motions to dismiss that the amendment is a substantial change in the cause of action and cannot be done in this case under R.C. § 2309.59 and cannot be done in any case after the sixty-day period. If this be correct, the claimant is deprived of his lien as well as his security because a bond was filed. And if this be correct, he was deprived of his lien and his security without notice and without due process creating a troublesome constitutional problem. R.C. § 1311.11 does not require notice of the filing of the bond and the cancellation of the lien. It does not require action upon the bond within any specified time. It merely requires the owner of the lien or his agent or attorney to commence suit 'there on,' referring only to the lien. If he does so file action on the lien the surety is released only upon the dismissal of such suit or the satisfaction of such judgment as may be entered in favor of the claimant. The statute does not require action against the surety on the bond within the sixty-day period for the filing of the action on the lien. As indicated in Demann on Ohio Mechanic Lien Law, 338 (1953):

'The lienor may, however, bring an action for foreclosure in form to establish the validity of the lien and subsequently maintain an action against the surety upon the bond upon recovering a judgment establishing the validity of the lien.'

In other words the lien claimant must commence suit to determine the validity of the lien within sixty days after notice to commence suit. If he is successful he may thereafter file suit upon the bond in...

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3 cases
  • Hutnick v. U.S. Fidelity & Guaranty Co.
    • United States
    • California Supreme Court
    • December 1, 1988
    ...410, 104 N.E. 946, 947; see also, United States v. Certified Industries, Inc. (2d Cir.1966) 361 F.2d 857, 861; Ohio Plate Glass Company v. Paskin (Ohio 1965) 209 N.E.2d 640, 642 [amendment of complaint alleging recording of bond and seeking relief against surety "does not change the cause o......
  • Weize Co. Llc v. Colo. Reg'l Constr. Inc.
    • United States
    • Colorado Court of Appeals
    • June 10, 2010
    ...v. U.S. Fidelity & Guaranty Co., 47 Cal.3d 456, 253 Cal.Rptr. 236, 763 P.2d 1326, 1330 (1988); Ohio Plate Glass Co. v. Paskin, 4 Ohio Misc. 136, 209 N.E.2d 640, 642 (Ohio.Ct.C.P.1965). 4. Weize's citation to Lindt & Sprungli USA, Inc. v. PR Painting Corp., 292 A.D.2d 610, 740 N.Y.S.2d 369 (......
  • Royster Construction Co. v. Urban West Communities
    • United States
    • California Court of Appeals Court of Appeals
    • December 6, 1995
    ...at p. 463, 253 Cal.Rptr. 236, 763 P.2d 1326.) The Supreme Court also quoted in part from an Ohio decision, Ohio Plate Glass Co. v. Paskin (1965) 4 Ohio Misc. 136, 209 N.E.2d 640, for the proposition that an action against a release bond surety " 'does not change the cause of action [to If t......

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