Richards v. Lewisohn

• Decision Date: 25 January 1897
• Citation: 47 P. 645,19 Mont. 128
• Parties: RICHARDS et al. v. LEWISOHN et al.
• Court: Montana Supreme Court

47 P. 645

19 Mont. 128

RICHARDS et al. v. LEWISOHN et al.

Supreme Court of Montana

January 25, 1897

Appeal from district court, Silver Bow county; William O. Speer Judge.

Action by Theodore Richards and Patrick Culkin, co-partners as Richards & Culkin, against Lewisohn Bros., to enforce a mechanic's lien. There was judgment for plaintiffs, and defendants appeal. Modified.

Foreclosure of mechanic's lien. Plaintiffs, as co-partners, allege among other things, that defendants Lewisohn Bros., a firm composed of persons unknown to the plaintiffs, are the owners and reputed owners of the property upon which the plaintiffs as plasterers, performed certain work; that, to secure and perfect their lien upon the building and lands, they filed their claim, duly verified, and made part of the complaint. The exhibits attached to the complaint were marked "A" and "B." Exhibit A reads as follows:

Butte City, Montana, Dec. 26, 1892. Butte City, Montana, Dec. 26, 1892. Lewisohn (whose Christian name is unknown) to Theodore Richards and Patrick Culkin, Dr. To 2,497 yards lathing, at 4 cts. per. yard .......................................... $ 99 88 To 187 yards lathing, at 8 cts per yard .......... 14 96 To lath patching .................................. 4 00 L Total amount due ........................... $118 84

Exhibit B, after reciting that the work was done as set forth in the preceding itemized statement, continued, "that said lathing, and the whole thereof, was done at the special instance and request of Lewisohn (whose Christian name is to us unknown), the owner of said building and ground on which same is situated, and the person for whose immediate use and benefit the said lathing was done," etc. Both plaintiffs verified the notice of lien and statement of account. Summons was served by publication upon the defendants, who failed to appear. Judgment was entered against them for the amount of the lien and costs, and it was decreed that the premises involved be sold to satisfy the judgment. Defendants appeal from the judgment.

C. R. Leonard, for appellants.

Paschal & Darrow, for respondents.

HUNT J.

(after stating the facts). The appellants ask a reversal of this case upon the single ground that the complaint does not support the judgment. This question is properly raised on appeal from the judgment alone. Foster v. Wilson, 5 Mont. 53, 2 P. 310; City of Helena v. Brule, 15 Mont. 429, 39 P. 456, 852; Tracy v. Harmon, 17 Mont. 465, 43 P. 500.

Appellants first object to the judgment itself. The judgment was that plaintiffs have and recover of the said defendants the sum of $140.60, the amount of the lien and debt, together with costs, due from defendants to plaintiffs. It was also further ordered, adjudged, and decreed that, all and singular, the premises mentioned in the complaint be sold, or so much thereof as might be sufficient to raise the amount due the plaintiffs upon said judgment, interest, and costs, and that the sheriff sell the same in manner provided by law. Inasmuch as it appears that service was had by publication, this judgment, if otherwise valid, is supported by the complaint only so far as it awards to plaintiffs a recovery of the amount of the indebtedness found to be due, and costs, to be levied out of the property charged with the lien thereof, and described in the judgment. Comp. St. 1887, div. 5, § 1383. No personal judgment could be rendered in this state against the owners of the realty in a suit to foreclose a mechanic's lien, where the service was by publication. Phil. Mech. Liens, § 307. If, therefore, the judgment is otherwise supported by the complaint, it can, in this respect, be modified so that the plaintiffs may be granted that remedy which the statutes above cited grant, and that alone.

But the appellants further contend that no judgment at all can stand in the case, because the lien does not connect Lewisohn Bros. with the ownership of the property, or with the work alleged to have been performed. The argument of counsel is that because the lien shows that the work was performed by plaintiffs for Lewisohn, whose Christian name was unknown, the lien paper itself disproves the allegations of the complaint that defendants Lewisohn Bros., a firm of persons unknown to plaintiffs, are the owners and reputed owners of the lots of ground. Tested by the familiar general principle that mechanics' liens are of an entirely statutory and extraordinary nature, and that a person who strictly pursues the statute must be granted his remedy, if justly entitled thereto, we think plaintiffs properly recovered in this case.

We are not called upon to positively decide whether, under section 1371, Comp. Laws 1887, or the amendments thereto, approved September 14, 1887 (Laws Ex. Sess. 1887, p. 71), a notice of lien must contain the name of the owner or reputed owner of the property sought to be charged; but it would seem that when sections 1371 and 1372 are considered together, there should be a statement of the owner's or reputed owner's name, if known to the claimant. It will be noted that sections 1371 and 1372 simply, in substance, require the filing by the claimant of a just and true account due or owing, after allowing all credits, and containing a correct description of the property to be charged with the lien, and verified by affidavit. Considered without reference to any further section of the law, it would doubtless be held, under the sections cited, that it was not essential that the name of the owner or reputed owner of the property be given. It was so held in Hays v. Mercier, 22 Neb. 656, 35 N.W. 894. But it is provided by section 1373 of the Compiled Laws of 1887 that the recorder of the county shall make an abstract of the lien account, in a book kept for the purpose, containing (1) the name of the claimant, (2) the amount of the lien, (3) the name of the person against whose property the lien is filed, and (4) the description of the property. The objects of having these particulars specified by the county recorder in an abstract book are to enable owners to have notice that their property is sought to be charged, and to inform them of the claims filed. Beals v. Congregation B'nai Jeshurun, 1 E. D. Smith, 654. Now, as the county recorder must make this abstract of the contents of the claim filed, clearly he can only secure his information for the entries from the account filed in his...