Valley View Development Corp. v. Cheugh & Schlegel of Dayton, Inc., 1271A257

• Decision Date: 27 March 1972
• Docket Number: No. 1271A257,1271A257
• Citation: 151 Ind.App. 450,280 N.E.2d 319
• Parties: VALLEY VIEW DEVELOPMENT CORP., Defendant-Appellant, v. CHEUGH & SCHLEGEL OF DAYTON, INC., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 319

280 N.E.2d 319

151 Ind.App. 450

VALLEY VIEW DEVELOPMENT CORP., Defendant-Appellant, v. CHEUGH & SCHLEGEL OF DAYTON, INC., Plaintiff-Appellee.

No. 1271A257.

Court of Appeals of Indiana, First District.

March 27, 1972.

Ralph M. Lett, Mooresville, Frank E. Spencer, Indianapolis, for defendant-appellant.

Owen S. Kern, Indianapolis, Charles H. Foley, Martinsville, for plaintiff-appellee.

LOWDERMILK, Judge.

This case comes to us after being tried to the court without the intervention of a jury, on the foreclosure of a mechanic's lien against the defendant-appellant and a judgment thereon in favor of the plaintiff-appellee.

The facts most favorable to the plaintiff-appellee, Cheugh & Schlegel, are that the Valley View Development Corporation entered into a contract with the Rochon Engineering Company for the construction of a building at the Mooresville Shopping Center, located in Morgan County, and which shopping center was owned by the defendant-appellant. Pursuant to said contract, the Rochon Engineering Company ordered certain steel products for use in the main building of the shopping center from the plaintiff-appellee, Cheugh & Schlegel of Dayton, Inc. The total amount invoiced to the Rochon Engineering Company for the steel products ordered for and delivered to the Mooresville Shopping Center was $18,278.00. The amount of $7,178.44 was accepted as partial payment from the Rochon Engineering Company, leaving an amount due and owing from that company to the plaintiff of $11,099.56. The last shipment of materials from the plaintiff to Mooresville Shopping Center arrived at said shopping center on the 4th day of November, 1968, and was partially used by the defendant.

Cheugh & Schlegel recorded a notice of mechanic's lien with the Recorder of Morgan County, Indiana, on the 26th day of December, 1968. This notice of mechanic's lien reflected a description of the Mooresville Shopping Center, and was directed to the defendant, Valley View Development Corporation. It had been sworn to and signed in the presence of a Notary Public on the 23rd day of December, 1968. A copy of the plaintiff's notice of mechanic's lien was mailed to the defendant, Valley View Development Corporation, in care of the President, Charles Amy, Indianapolis, Indiana, on December 30, 1968, by the Recorder of Morgan County, Indiana. Plaintiff filed its complaint to foreclose the mechanic's lien against the defendant, Valley View Development Corporation, on the 18th day of December, 1969.

Summons was subsequently issued by the Morgan County Circuit Clerk on February 11, 1970. Service was had on the defendant Valley View Development Corporation, on the 16th day of February, 1970.

The defendant-appellant sets out its motion to correct alleged errors, of which we shall here only set out number 3, for the reason that the trial court's findings and judgment was erroneous as to said specification 3 of the motion to correct errors.

Specification 3 is in the words as follows, to-wit:

'3. The suit to foreclose the lien will not lie because the record shows that the Clerk received the complaint filed marked December 18, 1969, but summons was not issued until February 11, 1970, approximately two months past the limit allowed by the statute (notice of mechanics lien filed with Recorder of Morgan County on December 26, 1968, the lien expired one year after that date, since the action to foreclose the lien had not yet been commenced.)'

Defendant-appellant therewith filed a memorandum in support of the motion to correct errors. The motion to correct errors and much of the memorandum in support thereof is set out in the defendant-appellant's brief.

Valley View cites as authority for support of this contention Burns 1967 Replacement § 2--619, IC 1971, 32--8--7--2, Burns 1967 Replacement § 2--622, IC 1971, 32--8--7--4, and Burns 1967 Replacement § 2--802. Said statutes each reads, in part, as follows, to-wit:

'2--619. Expiration of Mechanic's liens.--The lien of all mechanic's liens filed under the laws of this state shall cease and expire one (1) year from the time the debt secured thereby becomes due, as shown by the record of the notice of the lien. . . .'

'2--622. Action before expiration.--In case an action shall be begun in the courts of this state to foreclose or enforce the lien of any mortgage or other lien mentioned in this act ( §§ 2--618, 2--619, 2--621, 2--622) before the expiration of the lien thereof, as herein provided, such lien may be enforced in such action as it existed at the time the action was commenced.' (Our emphasis.)

'2--802. Filing complaint--Summons.--A civil action shall be commenced by filing in the office of the clerk a complaint, and causing a summons to issue thereon; and the action shall be deemed to be commenced from the time of issuing the summons; . . .'

Defendant-appellant Valley View further states this action to foreclose the lien asserted by the plaintiff-appellee will not lie because the lien, if any, had expired before the action was commenced, pursuant to and Burns § 2--619 and § 2--622. The record shows that the Clerk received the complaint on December 18, 1969, with a praecipe for summons returnable January 3, 1970, but the summons was not issued until February 11, 1970. The notice of mechanic's lien had been filed with the Recorder of Morgan County on December 26, 1968, after which timely notice of the filing was sent to the defendant-appellant by said County Recorder and since no summons had been issued by December 26, 1969, no action had commenced, pursuant to Burns § 2--802, supra, and the lien had expired.

Plaintiff-appellee counters such argument and statutes with Burns 1965 Replacement § 43--705, IC 1971, 32--8--3--6, which reads as follows, to-wit:

'43--705. How enforced--Filing--Foreclosure and sale.--Any person having such lien may enforce the same by filing his complaint in the circuit or superior court of the county where the real estate or property on which the lien is so taken is situated, at any time within one (1) year from the time when said notice has been received for record by the recorder of the county; or, if a credit be given, from the expiration of the credit, and if said lien shall not be enforced within the time prescribed by this section the same shall be null and void; . . .' (Our emphasis.)

Plaintiff-appellee relies on the case of Moore-Mansfield, etc. Co. v. Indianapolis, etc. R. Co. (1913), 179 Ind. 356, 101 N.E. 296, which is hereinafter discussed.

Previously, when considering this same question, this court, in the case of Carriger, et al. v. Mackey (1896), 15 Ind.App. 392, 44 N.E. 266, stated:

'The objection urged to the complaint is that it fails to show that the action was brought within the time limited by law.

'The statute requires that 'the complaint shall be filed' in the circuit or superior court within one year from the time when the notice was received for record in the recorder's office. . . . The appellants' counsel misapprehend the language of the statute. It does not require the action to be commenced within a year from the receipt of the notice in the recorder's office, but, as we have shown, it provides that the complaint shall be filed within that time. . . . We are aware that an action is not properly commenced until a summons has been issued and placed in the hands of the officer for service. . . Charlestown School Tp. v. Hay, 74, Ind. 127. As the language of the statute does not require that the action must be commenced within a year from the receipt of the notice, the objection to the complaint pointed out is not well taken. Nor is there any merit in the contention that the complaint is fatally defective because it fails to show when the notice to hold a lien was received in the recorder's office. . . . The complaint is sufficient to withstand the assignment of error.'

We are aware that Carriger, et al. v. Mackey, which was relied upon in the Moore-Mansfield case, supra, was written and decided before the statute relied upon by the deendant-appellant was enacted. However, from this reading of the Carriger case, it is quite apparent that the statute was similar to the statute in force today, namely, § 43--705, supra.

Carriger, et al. v. Mackey, supra, was written prior to the enactment of Burns § 2--619; § 2--622, supra, and the case of Moore-Mansfield, etc. Co., supra, was written after the enactment of Burns §§ 2--619 and 2--622; however a reading of Moore-Mansfield, etc. Co., supra, indicates the court relied heavily on the Carriger case for its authority in its opinion.

A very intense study of the Moore-Mansfield case indicates strongly to this court that the application of Burns §§ 2--619 and 2--622 and 2--802 was never questioned by either of the parties and said statutes were consequently never taken into consideration by the court in arriving at its opinion in the Moore-Mansfield case but that the court based its opinion on the Carriger case which appeared to have been based on completely different statutes on the subject.

However, in the Moore-Mansfield case the construction work was finished on November 28, 1907 and on November 29, 1907, Moore-Mansfield filed in the proper offices notice of intention to hold a mechanic's lien on the railway property.

Thereafter, on November 28, 1908, Moore-Mansfield filed its complaint in Superior Court, Room 1, to enforce its lien and prayed for the foreclosure of the lien and sale of the railway property for satisfaction of the same.

The opinion is silent as to when, if ever, a summons was issued, on whom it may have been served, and if the same was returned by the sheriff.

Without disclosing in the opinion anything as to the summons, as heretofore stated, the court then wrote as follows:

'In ordinary cases, an action in not commenced until a complaint shall have been filed, and a summons issued and placed in the proper officer's hands for service. However, in Carriger v....