Shreveport Long Leaf Lumber Co., Inc. v. Wilson

• Decision Date: 28 June 1940
• Docket Number: 35816.
• Citation: 195 La. 814,197 So. 566
• Court: Louisiana Supreme Court
• Parties: SHREVEPORT LONG LEAF LUMBER CO., Inc., v. WILSON et al.

197 So. 566

195 La. 814

SHREVEPORT LONG LEAF LUMBER CO., Inc., v. WILSON et al.

No. 35816.

Supreme Court of Louisiana.

June 28, 1940

Rehearing Denied July 18, 1940.

Appeal from Twenty-Sixth Judicial District Court, Parish of Webster J. F. McInnis, Judge.

Suit by the Shreveport Long Leaf Lumber Company, Inc., against Oscar Wilson and another to have recognized and enforced a materialman's lien against the property of defendant Oscar Wilson. A curator ad hoc was appointed for defendant Wilson who was a nonresident. The plaintiff's suit as to defendant Wilson was dismissed and plaintiff's demand for recognition and enforcement of lien and privilege was rejected at plaintiff's cost, and the plaintiff appeals.

Affirmed.

Hunter & Hunter, of Shreveport, Kennon & Kitchens, of Minden, and Wilkinson, Lewis, Wilkinson & Naff, of Shreveport, for plaintiff-appellant.

Campbell & Campbell, of Minden, for defendant-appellee.

ODOM Justice.

By written contract dated December 11, 1937, Oscar Wilson, one of the defendants, employed Fred E. Terry, a contractor, to build for him a two-story brick building on Lots 13 and 14 of Block 1 in the Town of Springhill, Webster Parish, Louisiana. Terry, the contractor, agreed to furnish all material and labor and to do all things necessary for the proper construction and completion of the work for a consideration of $10,000.

Wilson the owner, did not record this contract, nor did he require that Terry, the contractor, furnish bond or other security for the faithful performance of the contract, as required by Section 2, Act 298 of 1926. Terry, the contractor, erected the building according to the terms of the contract and purchased certain materials from the Shreveport Long Leaf Lumber Co., Inc., the plaintiff in this suit.

On June 2, 1938, the plaintiff filed for record in the office of the clerk of court and recorder of mortgages in the Parish of Webster, where the building is located, an itemized statement of materials furnished to Terry, showing a balance due by Terry for said materials of $3,625.13, the statement being accompanied by an affidavit of plaintiff's representative that said amount was justly due and owing. The itemized statement, together with the affidavit, was recorded in the mortgage records on June 8, 1938, in accordance with the provisions of Section 12, Act 298 of 1926.

Section 12 of that act provides that, when the owner undertakes the work of construction, improvement, or repair of any building, when no contract has been entered into or when a contract has been entered into but has not been recorded, then any person furnishing services or material or performing any labor on the building or other work ‘ may record in the office of the Clerk of Court or Recorder of Mortgages in the parish in which said work is being done or has been done a copy of his estimate or an affidavit of his claim or any other writing evidencing same, which recordation, if done within sixty days after the date of the last delivery of all material upon said property or the last performance of all services or labor upon the same, by said furnisher of material or said laborer, shall create a lien and privilege upon the building or other structure and upon the land upon which it is situated, in favor of’ such laborer or furnisher of material.

It is conceded that the plaintiff complied literally with the provisions of this section of the statute, and that a lien was created in its favor as a result of the recordation.

On September 14, 1938, plaintiff brought this suit in the district court of the Parish of Webster against Oscar Wilson, the owner, and Fred E. Terry, the contractor, to recover judgment in solido against them for the balance due as shown by the recorded statement and affidavit. The plaintiff alleged that Oscar Wilson, he owner, is a non-resident of the state and asked that a curator ad hoc be appointed to represent him in the proceeding. Plaintiff did not pray for personal judgment against the defendant Wilson, but reserved its right to proceed against him for a personal judgment. This suit against Wilson, the owner, is therefore one in rem to have recognized and enforced the plaintiff's lien and privilege against Wilson's property.

Terry, the contractor, and the curator ad hoc appointed to represent Wilson, the owner, filed certain exceptions which need not be discussed, after which they answered, denying generally plaintiff's allegations.

The case was tried on its merits on April 5-6, 1939, and submitted on June 28, on briefs to be filed. The case was taken under advisement, and no further steps were taken until October 20, 1939, when the curator ad hoc for Wilson, the owner, moved to reopen the case and thereupon filed the following plea:

‘ 1. That the original statement, affidavit and lien, which form the basis of this suit, were filed on June 7, 1938; that same has not been renewed or reinscribed, as required by law, within the time and manner required by law, and that more than one year has elapsed since the original filing of said statement, affidavit and lien, all of which will more fully appear from the certificate of Clerk of Court and ex-Officio recorder of mortgages filed herewith and made a part hereof.

‘ 2. That said affidavit, lien and privilege, and the cause of action thereon and therefor, is now lost, extinguished and become barred by the prescription of one year, which prescription is hereby specially pled.

‘ 3. That said affidavit, lien and privilege, and the cause of action therefor, has now preempted, prescribed, and become extinguished by the peremption of one year, which peremption is hereby specially pled.’

Terry, the contractor, made no defense, and judgment was rendered against him as prayed for. The plea of prescription and peremption filed by the curator ad hoc for Wilson, the owner, was sustained, and plaintiff's suit as to Wilson was dismissed and its demand for recognition and enforcement of the lien and privilege was rejected at plaintiff's cost. Plaintiff appealed.

The plaintiff filed its lien under, and in accordance with the provisions of, Section 12, Act 298 of 1926, which was in effect at that time. But that section of the act was amended and reenacted by Act 323, page 805, of 1938, which act was approved by the Governor on July 6 and went into effect 21 days thereafter.

Plaintiff filed its suit to have its lien and privilege recognized and enforced on September 14, 1938, which was about 45 days after the amending statute went into effect.

If the original act is applicable to this case, plaintiff's lien is not prescribed. But, if the amending act is applicable, the lien is prescribed, and the judgment appealed from is correct.

Section 12 of the 1926 act, after reciting that the recordation of the statement of materials furnished or labor performed, with the supporting affidavit, shall create a lien and privilege upon the building and other structure and upon the land on which it is situated, in favor of persons who have performed services or labor or delivered materials in connection with such work of improvement, goes on to provide that: ‘ Said lien and privilege recorded as aforesaid, shall constitute a lien and privilege, against the said property for a period of one year from the date of its filing, unless interrupted by judicial proceeding, during which judicial proceeding said prescription shall not run .’

The corresponding clause in the 1938 act reads as follows: ‘ Said lien and privilege, recorded as aforesaid, shall constitute a lien and privilege against the said property for a period of one year from the date of its filing, and may be enforced by a civil action in any Court of competent jurisdiction in the parish in which the land is situated and such right of action shall prescribe within one year from the date of the recordation of the privilege in the office of the Recorder of Mortgages; and the effect of the registry ceases, even against the owner of the property or the property itself, if the inscription has not been renewed within one year from the date of the recordation .’

The 1926 act provides also that any person furnishing services or material or performing any labor on the building or other work to or for a contractor or subcontractor, when a contract, oral or written, has been entered into but no contract has been timely recorded, ‘ shall have a personal right of action against the owner for the amount of his claim for a period of one year from the filing of his claim, as provided in this Section, which right of action shall not prescribe during the pendency of judicial proceedings .’

The corresponding provision in the 1938 act reads as follows: ‘ shall have a personal right of action against the owner for the amount of his claim for a period of one year from the filing of his claim, as provided in this Section, which right of action shall not prescribe within one year of the date of its recordation, or the reinscription thereof ’ .

Section 12 of the original act and the same section as amended are identical, word for word, except as indicated by the phrases and clauses which we have italicized above.

The lien and privilege created by, or resulting from, the filing and recordation of the claim in the mortgage records exists against the property owner ‘ for a period of one year from the date of its filing’, unless it is kept alive for a longer period by the method prescribed by the statute. In other words, the lien prescribes in one year. But the running of prescription may be interrupted. Under the statute as originally adopted, prescription was ‘ interrupted by judicial proceeding, during which judicial proceeding said prescription shall not run’ . Under the statute as amended and...