Smalley v. Northwestern Terra-Cotta Co.

• Decision Date: 28 May 1897
• Court: Michigan Supreme Court
• Parties: SMALLEY ET AL. v. NORTHWESTERN TERRA-COTTA CO. ET AL.

71 N.W. 466

113 Mich. 141

SMALLEY ET AL. v. NORTHWESTERN TERRA-COTTA CO. ET AL.

Supreme Court of Michigan

May 28, 1897

Appeal from circuit court, Wayne county, in chancery; Oscar Adams Judge.

Action by William Smalley and others against the Northwestern Terra-Cotta Company, impleaded with Traugott Schmidt, Joseph L. Gearing, and others, to enforce a mechanic's lien, in which defendant company filed an answer in the nature of a cross bill. From an order sustaining a demurrer of defendant Schmidt to such answer, the Northwestern Terra-Cotta Company appeals. Reversed.

Warner, Codd & Warner, for appellant.

Walker & Spalding, for appellee Schmidt.

H. H. &amp C. H. Hatch, for appellees Smalley and others.

MOORE J.

The defendant Schmidt, the owner of land in Detroit, in the spring of 1895 contracted with Mr. Gearing, a building contractor, for the erection of a business block thereon. In the fall of 1895, when the building was partially completed a number of material men filed liens against the lot and building for materials which they severally claimed to have furnished to Mr. Gearing. The original bill of complaint in this cause was filed in January, 1896, for the enforcement of one of these lines, and the other lien claimants and the defendant Schmidt, as owner of the land and building, were made defendants. On March 17, 1896, the defendant the Northwestern Terra-Cotta Company, one of the lien claimants, filed an answer in the nature of a cross bill, praying for the enforcement of its lien, which was filed on the 14th day of November, 1895. To this answer, in so far as it claims the benefit of a cross bill, the defendant Schmidt filed a general demurrer on the 19th day of March, 1896. On January 2, 1897, the court sustained the demurrer, upon the ground that the answer failed to show that any copy of the statement of lien filed with the register of deeds was served upon the defendant Schmidt, and that if failed to show that any proof of service of a copy of that statement upon said defendant Schmidt was filed in the office of the register of deeds before the institution of proceedings to enforce the lien. The order gave leave to amend. Upon the same day an amended answer was filed, setting up the service of a copy of the statement upon Schmidt on the 22d day of November, 1895, and averring that on the 11th day of December, 1896, proof of that service by affidavit was filed in the office of the register of deeds. Immediately upon the filing of this amended answer, a demurrer thereto was filed setting up the following grounds of demurrer: (1) That the order permitting the filing of this amended answer in the nature of a cross bill, and the filing thereof, were unauthorized and unwarranted by law, because the order itself was made and the amended bill was filed more than six months after the time when the statement of the lien of the terra-cotta company was filed with the register of deeds; (2) because the proof of service of said statement of lien upon the defendant Schmidt, as averred in said amended answer in the nature of a cross bill, was filed with the register of deeds more than six months after the time when the statement of lien was filed, and after the filing of the original answer in the nature of a cross bill for the enforcement of said lien; (3) because the court had no power, under an answer in the nature of a cross bill, to grant to the defendant filing such answer any relief against a co-defendant or against the property of such co-defendant. Upon the same day, January 22, 1897, this demurrer was sustained, and the amended answer in the nature of a cross bill, in so far as it claims the benefit of a cross bill against the defendant Schmidt and his property, was dismissed. From this order the terra-cotta company takes the present appeal. No demurrer or other objection was filed by any other person than defendant Schmidt to this answer in the nature of a cross bill.

It is the claim of appellee Schmidt that the law makes the following things necessary conditions precedent to the taking of proceedings to the enforcement of a lien by any person not contracting directly with the owner: (1) Filing with the register of deeds a statement of lien within 60 days after the last furnishing of labor or material; (2) service upon the owner or his agent, personally, of a copy of the statement within 10 days after the filing, or, if neither owner nor agent can be found within the county, service by posting on the premises within 5 days more; (3) filing proof of such service with the register of deeds before the commencement of proceedings to enforce the lien. He contends that, as the taking of these steps is made by the statute prerequisite to the enforcement of the lien, the performance and the averment of performance of each of them are necessary allegations in any bill to enforce such a lien, and that, as an original bill could not be filed for that purpose more than six months after the lien was filed, neither could a bill filed within six months, but omitting any of these necessary allegations, be so amended as to include them after the six months had expired. It will be observed that the amended answer shows that all these conditions were performed, except the filing of the proof of the service of the notice with the register of deeds, before the commencement of the proceedings to enforce the lien. The question, then, is whether, when all the steps to establish a lien have been taken, except the filing with the register of deeds of proof of service of the statement of lien on the owner before commencing proceedings to enforce the lien, the proceedings must fail.

It is the contention of the appellee that, as this is a proceeding in derogation of the common law, the statute must be strictly construed, and, as the pleadings do not show a compliance with the law, the proceeding must fail. It is admitted on the part of the appellant that, as to all those requirements of the statute necessary to create the lien, the statute is mandatory, and must be followed; but it is claimed that after the lien is once established its provisions are directory and that if such steps are taken as fully protect the owner, as in this instance, by giving him notice of the claim within the time fixed by statute, he is not harmed, and cannot complain. It has long been the settled law in this state that these proceedings are purely statutory, and that, to create a lien under them, the statute must be followed in all its essentials. Wagar v. Briscoe, 38 Mich. 587; Electric Co. v. Norris, 100 Mich. 496, 59 N.W. 151; Mercantile Co. v. Mosser, 105 Mich. 18, 62 N.W. 1120. In the case of Sheridan v. Cameron, 65 Mich. 680, 32 N.W. 894, which was a proceeding to enforce a mechanic's lien, where the proceedings were attacked on the ground that they were prosecuted too late and irregularly, the petition was filed within the 60 days allowed by statute, but it did not contain a prayer for process. The notice of lis pendens was filed after the 60 days expired. It was claimed that for these reasons the proceeding must fail. In discussing the case, Justice Campbell said: "The plea does not set up a failure to file notice of lis pendens as a defense, and it is not, therefore, in issue; but, taking the whole statute together, it seems that its chief purpose is to bind subsequent interests, and to serve the same purpose as notices of lis pendens under the general chancery practice. At all events, no other purpose is indicated on the face of the statute, and it hardly seems necessary as against the original parties to the bill, unless, possibly, during the interval before service of process or other notice to come in. *** The claim that the lien law is to be rigidly construed is not correct, in the full extent claimed. There is no doubt that a purely statutory lien must conform exactly to the statutory condition; but when it once attaches, and is put in process of foreclosure, the proceedings, while in part definitely fixed, are nevertheless in important particulars left to the general course of practice. No construction should be strained at in order to defeat them, but the rights of all parties should be harmonized and respected as far as is reasonably practicable." In the case of Mouat v. Fisher, 104 Mich. 262, 62 N.W. 338, the lienor, instead of serving notice on the landowner, obtained from him an acceptance of service. It was claimed by the landowner that the statutory requirements had not been...