Weggs v. Kreugel

• Decision Date: 22 February 1922
• Docket Number: No. 2650.,2650.
• Parties: WEGGS ET AL.v.KREUGEL ET AL.
• Court: New Mexico Supreme Court

28 N.M. 24

205 P. 730

WEGGS ET AL.

v.KREUGEL ET AL.

No. 2650.

Supreme Court of New Mexico.

Feb. 22, 1922.

Syllabus by the Court.

In an action to foreclose a mechanic's lien, a copy of the notice of lien need not be attached to the complaint; the action not being founded on the notice.

A proposition not assigned as error will not be considered.

Only substantial compliance with the mechanic's lien statute is required.

Proof held sufficient to sustain findings.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Action by J. J. Weggs and others against William Kreugel and others to enforce a lien. Judgment was entered determining the amount due and decreeing the lien, but no personal judgment was rendered but right reserved to enter deficiency judgment, and the defendants appeal. Affirmed.

In an action to foreclose a mechanic's lien, a copy of the lien notice need not be attached to the complaint; the action not being founded upon the notice in view of Code 1915, §§ 3319, 4146.

Thos. N. Wilkerson, of Albuquerque, for appellants.

W. A. Keleher, of Albuquerque, for appellees.

DAVIS, J.

In May, 1920, Frank Tomei, one of appellants, was the owner of certain real estate in Albuquerque. William Kreugel, the other appellant, held a contract for the purchase of the property, or, as expressed in the complaint and admitted in the answer, “was the prospective owner under a conditional sale contract.” Kreugel employed appellees to make some alterations and repairs in the building on the property. Tomei was not a party to the contract. Appellees did the work and furnished the materials necessary for these repairs, and, not having been paid in full, filed their claim of lien in the office of the county clerk of Bernalillo county. This proceeding was commenced to enforce the lien. The prayer was for personal judgment against each of the appellees and for a sale of the property to satisfy the amount found due. The court entered judgment determining the amount due, declared it to be a lien against the interests of both appellants in the premises, and ordered a sale. No personal judgment was rendered, but the court reserved the right to enter judgment against Kreugel for any deficiency remaining after application of the proceeds of the sale.

[1] 1. When the claim of lien filed with the county clerk was offered in evidence, appellants objected, because no copy of it was attached to the complaint, basing their objection upon section 4146, Code 1915, which provides that, when any written instrument upon which the action is founded is referred to in the pleadings, the original or a copy shall be filed with the pleading, in default of which, or of sufficient reason for the failure, the instrument shall not be admitted. The trial court held that the action was not founded upon this instrument and the statute therefore did not apply. This ruling was correct. That a claim of lien be prepared and filed is an essential requisite under the statute (Texas, Santa Fé & N. R. Co. v. Orman, 3 N. M. 652, 9 Pac. 595), but it is by no means the foundation of the lien nor of an action commenced to enforce it. The lien is really founded upon the doing of the work or the furnishing of the material; the language of the statute, section 3319, being that every person performing labor upon or furnishing materials to be used has a lien for the work done or materials furnished. The filing of the claim under section 3323 is a step absolutely required to perfect the lien, but it does not itself constitute the lien, nor is the lien founded upon it. The failure to attach a copy to the complaint did not prevent its admission in evidence.

[2] 2. It is next...