Va. Supply Co. v. Petitioner
| Decision Date | 19 November 1912 |
| Court | West Virginia Supreme Court |
| Parties | Virginia Supply Co. v. Calfee et al. |
1. Mechanics' Liens Personal Judgment Privity of Contract.
If there is no privity of contract between the owner and a person who furnishes material to the contractor for use in the erection of a house, it is error to render a personal decree for his claim against the owner. (p. 301).
2. Same Notice Service.
Return of service of a mechanic's lien notice, made by a private person under oath, as well as return of service of such a notice by a sheriff, in his official capacity, is prima facie proof of service, (p. 301).
3. Appeal and Error Review Mechanics' Liens Amount in Controversy.
A decree for mechanics' liens, some more and some less than one hundred dollars, is not reviewable in this Court as to those liens that are less than one hundred dollars. (p. 302).
4. Costs Appeal Release Errors.
A party who refuses to accept a release of errors, tendered before he has taken an appeal, and continued in this Court, is not entitled to recover costs upon the appeal. (p. 301).
Appeal from Circuit Court, Mercer County.
Action by the Virginia Supply Company against A. E. Calfee and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
Hale & Pendleton, for appellants.
Randolph Henry, for appellee.
A. M. Calfee employed H. B. Moore to erect a house for him on a lot in the town of Princeton, Mercer county, West Virginia. The contract was not recorded. Moore abandoned the work before it was quite finished, having been paid by Calfee nearly the full value of his work. Plaintiff and a number of other persons who had furnished material to Moore, used in the construction of the house, filed and had recorded mechanics' liens against the property. This suit is to enforce those liens. The cause was re- ferred to a commissioner to ascertain and report to court the liens upon the property and their priority. The commissioner reported adversely to plaintiff's lien, and ft excepted. The court sustained the exception, and, on the 9th of December, 1910, decreed plaintiff's debt to constitute a lien of the same order with the other mechanics' liens a vendor's lien in favor of J. W. Hale being decreed to be a lien of prior dignity. Prom that decree Calfee has appealed.
It is assigned as error that the decree is personal against Calfee. In that respect the decree is clearly erroneous. Xo privity of contract being shown to exist between Calfee and the lienors, it was error to render a personal decree against him. Augir v. Warder, 68 W. Va. 752. But, before this appeal was taken, the lienors executed and filed with the clerk of the circuit court a signed writing releasing this error. This they had a right to do and thereby avoid the cost of an appeal.
Counsel for appellant insist that it is not proven that the notice, required by statute to be given to the owner within thirtyfive days after the material was furnished or the work ceased, was actually served upon him. The notices given by some of the lienors were served by private persons, who made return under oath, showing that service was made personally upon Mr. Calfee; others were served by the deputy sheriff, who made return thereof in his official capacity, showing personal service also. Mr. Calfee denies in his answer to the bill that he was served with notices within the time required by law, but he does not deny it in his testimony. The return under oath of a private person, of the manner of service of such notice, is entitled to as much consideration as...
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