Shea v. Graves

Decision Date28 February 1933
Citation19 P.2d 406,142 Or. 503
PartiesSHEA v. GRAVES et al.
CourtOregon Supreme Court

As Corrected April 11, 1933.

Department No. 2.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

Suit by Charles A. Shea, administrator of the estate of J. F. Shea deceased, against Ernest L. Graves, A. T. Allen, receiver of the business and assets of the E. J. Struntz Planing Mill Company, and others. From a decree for plaintiff and defendant Allen, defendants Graves and others appeal.

Reversed in part and affirmed in part.

Mechanic's lien claimants, pleading no claim to or lien on lot covered by second mortgage, executed by owner and recorded after construction of building was commenced, cannot complain of decree foreclosing mortgage.

B. A. Kliks and Charles J. Taff, both of McMinnville (C. W. Redding, of Portland, on the brief), for appellants.

Arthur H. Lewis, of Portland (Lewis, Lewis & Finnigan, of Portland on the brief), for respondents.


Charles A. Shea, administrator of the estate of J. F. Shea, deceased, was allowed a lien claim of $736 and $200 attorney's fees, plus other items, with interest. E. J. Struntz Planing Mill Company was allowed a lien claim of $167.49, with interest, and $75 attorney's fees. The allowance and foreclosure of these two lien claims is the basis of the appeal.

The property covered is lot 6, block 4, Miami addition to the city of Portland, Multnomah county, Or. The liens were preferred and made prior to the mortgage of $3,500 of Louise B. Kliks and to the second mortgage of $4,500 of J. H. Wildman.

Defendant Graves owned lot 6, block 4, Miami, with other property, and after first mortgaging the property to one Seeberger, and partially constructing a dwelling house thereon, mortgaged the same December 18, 1926, to Louise B. Kliks, which mortgage was recorded December 20, 1926. Defendant Wildman's mortgage covers lots 1 and 2, block 2; lot 2 and the south 50 feet of lots 4 and 5 and the north 58 feet of lot 6, block 4, Miami. The mortgage is dated January 14, 1927, and recorded the next day. There was a deed to defendant Crowe dated March 1 and recorded the next day. There were other third and fourth mortgagees and holders of judgments, but these parties made no appearance and their default was entered.

It is assigned as error, as to the Shea claim, that the summons was not issued or served within six months of the date of filing the same. No summons was issued by Shea. The appellants, however, appeared and contested the suit. It is claimed that the complaint was filed after the expiration of six months from the filing of the lien and is barred by the statute; that the Shea claim was not filed within sixty days after he ceased to labor on the building or the completion of the contract; that the Shea claim was paid; that neither the lien claimed nor the complaint alleged that the contract of either J. F. Shea or Charles A. Shea, as administrator, has been fully performed; that the administrator is not entitled to any lien; that the Shea lien claim is part of a claim for labor and material furnished in the lifetime of J. F. Shea; that the alleged lien claim is not one within the statute for work, labor, or material for J. F. Shea, nor for the administrator, nor any one else, but apparently on behalf of an estate; that the lien claim was not founded on contract; that there can be no lien in behalf of an estate, because an estate is not a person and is not within the statute; that the claim of lien is made in behalf of the estate of J. F. Shea, deceased, but the proof shows that the work was done by the J. F. Shea Company.

The assignments of error as to E. J. Struntz Planing Mill Company are that the Struntz lien is paid, and that the claim of Struntz does not contain a true statement, after deducting all just credits, etc., and credit has not been given properly by Struntz.

It is shown in regard to the Struntz Planing Mill Company claim that the same is paid in full and the decree in favor of E. J. Struntz Planing Mill Company is reversed and the claim dismissed.

Section 51-101, Oregon Code 1930, provides: "Every mechanic *** contractor *** and other persons performing labor upon or furnishing material *** used in the construction *** of any building *** shall have a lien upon the same for the work or labor done *** or material furnished. ***"

Section 51-105 provides: "It shall be the duty of every original contractor, within sixty days after the completion of his contract *** to file with the county clerk *** a claim containing a true statement of his demand, *** which claim shall be verified by the oath of himself or of some other person having knowledge of the facts."

Section 51-107 provides: "No lien provided for in this act shall bind any building, structure, or other improvement for a longer period than six months after the same shall have been filed unless suit be brought in a proper court within that time to enforce the same; or if a credit be given, then six months after the expiration of such credit; but no lien shall be continued in force for a longer time than two years from the time the work is completed by any agreement to give credit."

The right to a lien is conferred by statute and the party claiming such lien must show a substantial compliance with the statute. Boise-Payette L. Co. v. Dominican Sisters, 102 Or. 314, 319, 202 P. 554; Allen v. Rowe, 19 Or. 188, 23 P. 901.

The lien of J. F. Shea, as administrator, was filed May 2, 1928, and the suit to foreclose the same was commenced November 2, 1928. The complaint was therefore filed within the six months. The word "month" as used in the statute means a calendar month.

In regard to the time of the commencement of the suit, counsel for defendants cite Capital Lbr. Co. v. Ryan, 34 Or. 73, 76, 54 P. 1093, 1094. In that case the lien claimant was not allowed for payments or material which were due more than six months prior to the commencement of the suit. It was stated: "In this case, more than that time had elapsed after the expiration of the credit for all installments falling due on or before the 4th day of February, 1894, and, as to them, the plaintiff lost its lien." The installments mentioned related to installments, as shown by the opinion and records of this court in the case, commencing on the 10th day of May, 1893, and monthly thereafter; therefore the installment due before February 4, 1894, was the installment due on January 10, 1894, much more than six months prior to the commencement of the suit. There was no question in regard to one day's time, as in the case at bar. While the language is "on or before" that date, it states that more than that time had elapsed, and the record shows that nearly a month more than six months had elapsed since the last installment became due prior to February 4, 1894.

In O'Conner v. Standard Cafeteria Co., 68 Or. 550, 137 P. 774, under the statute requiring presentation of claims to an assignee for creditors within three months from notice and the statute providing that the time within which an act is to be performed is computed by excluding the first day and including the last, unless the last day is a nonjudicial day, when it is also excluded, where the first publication of the assignee's notice was on October 12, 1910, a claim presented on January 12, 1911, was held to be in time, "a month" when used without qualification, meaning a calendar month unless a contrary intent is shown. See Cyc. 312; In re Gregg, 213 Pa. 260, 62 A. 856.

The plaintiff was allowed six months only and not six months and a day in which to commence suit to foreclose his lien after the lien was filed. The suit was commenced within six months of the date upon which the lien notice was filed. May 2d would not be computed within the six months as the law knows no fraction of a day. The six months from May 2d would not expire until the end of November 2d. Therefore the complaint was filed within the time provided by the statute. The filing of a complaint or answer in a suit to foreclose a mechanic's lien, although without the service of summons, saves the lien from the bar of the statute of limitations. Section 51-107, Oregon Code 1930; O'Conner v. Standard Cafeteria Co., supra; Title Guarantee Co. v. Wrenn, 35 Or. 62, 56 P. 271, 76 Am St. Rep. 454; ns v. White Swan Mining Co., 35 Or. 305, 57 P. 637; 40 C.J. 392; 38 Cyc. 313.

The summons serves the purpose of bringing the defendants into court and where they appear in a suit, it is immaterial whether summons was served in a suit of this kind or not. It is plainly written on the record that the complaint was filed and suit commenced with the intention of diligently prosecuting the same, and it was prosecuted with diligence. Appellant cites section 51-118. This law was passed in 1891 and has to do with the foreclosure of liens for clearing, ditching, digging, or improving land and does not change or amend section 51-107. This point urged by appellant is not well taken.

As to the second objection, an original contractor within the meaning of the Mechanic's Lien Law is one who furnishes labor or material and labor on a contract direct with the owner. It is shown by the record that Charles A. Shea, as administrator of the estate of J. F. Shea, deceased, furnished labor and material on a contract direct with the owners, Ernest L. Graves and wife, and was an original contractor. Shea v. Peters, 126 Or. 76, 268 P. 989; Bernard v. Hassan, 60 Or. 62, 118 P. 201.

Under section 51-105, Charles A. Shea, administrator, had sixty days from the completion of his contract to file a lien. It was the plan of Ernest L. Graves, who was constructing several houses and for whom Shea did the plumbing, to commence the...

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