Rodd v. Titus Const. Co.

• Decision Date: 30 June 1966
• Citation: 107 N.H. 264,220 A.2d 768
• Parties: William G. RODD, d/b/a Major L. Rodd, the Roofer, v. TITUS CONSTRUCTION CO., Inc., et al.
• Court: New Hampshire Supreme Court

Page 768

220 A.2d 768

107 N.H. 264

William G. RODD, d/b/a Major L. Rodd, the Roofer, v. TITUS CONSTRUCTION CO., Inc., et al.

Supreme Court of New Hampshire.

Submitted May 4, 1966.

Decided June 30, 1966.

Mack M. Mussman, Littleton, and Richard W. Mahan, Littleton, (by brief) for plaintiff.

Cofran, Quint & Greenhalge, Concord, (by brief) for defendants Kenneth E. and Florence L. Garland.

WHEELER, Justice.

This is an action to preserve a mechanic's lien under RSA ch. 447. The declaration in the writ is as follows: 'In a plea of MECHANIC'S LIEN to secure a lien on the land and building thereon, said land being that owned by Kenneth E. and Florence L. Garland in Whitefield, County of Coos, State of New Hampshire and described herein by reference to the deed recorded in the Coos County Registry of Deeds, Book 480, Page 152, and another certain parcel of land with the building thereon situate in Lancaster, County of Coos, State of New Hampshire owned by Kenneth E. Garland and Florence L. Garland, described herein by reference to a deed recorded in the Coos County Registry of Deeds, Book 485, Page 107. Said lien being to secure the plaintiff for labor and materials furnished on the building in said Lancaster within 90 days of date of the writ in the amount of $2400.00 and on the building situate in Whitefield aforesaid for labor and materials furnished within 90 days of date of writ and balance due in the amount of $514.40 making a total of $2914.40.'

Defendant Titus Construction Co., Inc., is in bankruptcy and has defaulted this action. A verdict for the plaintiff in the sum of $2914.40 has been entered against it.

The precept in the writ provides only for a general attachment of the property of defendants Kenneth E. and Florence L. Garland and the sheriff made only a general return of the attachment on the writ. Neither the precept nor the return contain any reference to a mechanic's lien. The plaintiff has filed a motion to amend the sheriff's return.

Defendants Garland filed a motion to dismiss because '(1) neither the writ nor the attached declaration contain a proper command to the Sheriff to make the special attachment required by statute, and (2) return of the real estate attachment made by the Sheriff does not contain a proper special attachment of said real estate required by statute.'

The following questions were reserved and transferred without ruling by Leahy, C.J. 1. Should the action be dismissed for the reasons set forth in defendants' motion? 2. Should the Sheriff be allowed to amend his return, in view of the precept in the writ?

RSA 447:10 provides: 'How Secured. Any such lien may be secured by attachment of the property upon which it exists at any time while the lien continues, the writ and return thereon distinctly expressing that purpose.' (Emphasis supplied).

In order to secure such a lien under this section this Court has held that the plaintiff must (1) state in his writ the purpose for which the suit is brought; (2) describe the...