Simonson Bros. Mfg. Co. v. Citizens' State Bank of Goldfield
| Decision Date | 09 April 1898 |
| Citation | 105 Iowa 264,74 N.W. 905 |
| Parties | SIMONSON BROS. MFG. CO. v. CITIZENS' STATE BANK OF GOLDFIELD. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Wright county; B. P. Birdsall, Judge.
Action to establish and foreclose a mechanic's lien. Trial to court. Decree for defendant. Plaintiff appeals. Reversed.A. Ueland and Peterson & Humphrey, for appellant.
Nagle & Nagle, for appellee.
The Citizens' State Bank entered into a written contract with one Lofgren, who is also a defendant herein, whereby he was to construct for it, in Goldfield, a building for banking purposes. Lofgren procured of plaintiff, whose place of business is in Minneapolis, Minn., sash, doors, and woodwork for said building, to the amount, as claimed by plaintiff, of $339.82, balance due. Lofgren left the state, without settling with plaintiff. The latter filed a statement for a mechanic's lien on said premises, and brings this action to foreclose the same. Lofgren was served with notice by publication, and made default in the court below. This is a sufficient statement of the facts to give an understanding of the first point presented for determination.
2. Plaintiff's claim is on an open account, and the first question submitted is whether a subcontractor, who holds an open, unliquidated account against the principal contractor, may bring an action against the owner to foreclose his lien, and in the same action adjudicate the amount of his claim against the principal contractor, who is served only by publication with notice of the action. That the subcontractor cannot foreclose his lien until the amount due him from the principal contractor is settled or adjudicated may be conceded. Vreeland v. Ellsworth, 71 Iowa, 347, 32 N. W. 374;Kerns v. Flynn, 51 Mich. 573, 17 N. W. 62; Phil. Mech. Liens, § 397. The contention of appellee is that plaintiff's claim against Lofgren was purely personal, and that there can be no adjudication against him until the court has jurisdiction of his person, and that this cannot be acquired on service by publication. It would, indeed, be a singular defect in our law if a subcontractor, who has a right to a mechanic's lien, can be prevented from enforcing it by the absconding of the principal contractor. We have always regarded an action to enforce a mechanic's lien as in the nature of a foreclosure of a mortgage. Where no personal judgment is asked, it is strictly a proceeding in rem. Phil. Mech. Liens, § 305; 2 Black, Judgm. § 810. Our statute provides that jurisdiction may be obtained of a defendant, on service by publication, “in actions brought against a nonresident of this state, or a foreign corporation, having in this state property or debts owing to such defendant sought to be taken by any of the provisional remedies, or to be appropriated in any way.” Code 1873, § 2618, subd. 5. We cannot perceive why, under this provision, a plaintiff's right, as against his debtor, cannot be as fully adjudicated in the foreclosure of a mechanic's lien as it could in an attachment suit, or in the foreclosure of a mortgage. We are not impressed with the reasoning of the two cases cited by appellee, and which were decided by an intermediate court of Colorado. In Castleberry v. Johnston (Ga.) 17 S. E. 772, also in appellee's brief, the intimation is expressly against the claim made here. The case is reported without an opinion, but the syllabus is by the court. While it is held that, when the principal contractor has absconded, an action to foreclose, based on an unliquidated account, cannot be maintained by a subcontractor unless the former is served with notice, it is said also that the notice may be by publication. But authorities scarcely seem necessary. The action here is but a method of condemning to plaintiff's use money, in the possession of the bank, that belongs to Lofgren. This can certainly be done, as against a nonresident upon whom personal service cannot be obtained.
3. On November 12, 1895, the day of filing its statement for a lien, which was within 30 days of the time of delivering the last material under its contract, plaintiff served on the bank written notice of its claim. It is not denied that prior to this time the bank had knowledge of the fact...
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