Western Loan & Building Co. v. Gem State Lumber Co.

• Decision Date: 22 November 1919
• Citation: 32 Idaho 497,185 P. 554
• Court: Idaho Supreme Court
• Parties: WESTERN LOAN & BUILDING COMPANY, a Corporation, Appellant, v. GEM STATE LUMBER COMPANY, a Corporation, Respondent

185 P. 554

32 Idaho 497

WESTERN LOAN & BUILDING COMPANY, a Corporation, Appellant, v. GEM STATE LUMBER COMPANY, a Corporation, Respondent

Supreme Court of Idaho

November 22, 1919

APPEAL AND ERROR-FUNDAMENTAL ERROR-MECHANIC'S LIEN-PRIORITY.

1. An objection that the complaint does not state facts sufficient to constitute a cause of action is fundamental. It is never waived, and may be considered by an appellate court, even in the absence of a specification of error.

[As to right to question sufficiency of complaint for the first time on appeal, see note in 3 Ann.Cas. 545.]

2. Under C. S., sec. 7349, a mechanic's lien does not continue unless proceedings are commenced in a proper court against the person, or persons, against whose interest the lien is asserted, within the time limited by the statute.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action by plaintiff for the foreclosure of mortgage. Cross-complaint by defendant Gem State Lumber Company for the foreclosure of materialmen's lien. Judgment for cross-complainant. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellant.

Sweeley & Sweeley, for Appellant.

As the lumber company did not bring suit to foreclose its lien as against the appellant within six months from the time statement for a lien was filed, its lien as to the appellant had expired when this action was commenced, for which reason the cross-complaint of the lumber company did not, as against the appellant, state a cause of action. (D. W. Standrod &amp Co. v. Utah Implement-Vehicle Co., 223 F. 517, 139 C. C A. 65.)

Under the mechanic's lien law of Idaho, which requires suit for enforcement to be brought within six months after filing of the lien claim, the lien is void as to all subsequent encumbrancers who are not made parties to the suit to foreclose within the six months. (Utah Implement-Vehicle Co. v. Bowman, 209 F. 942; Continental & Commercial Trust & Savings Bank v. Pacific Coast Pipe Co., 222 F 781, 138 C. C. A. 329; Davis v. Bartz, 65 Wash. 395, 118 P. 334; Union National Savings & Loan Assn. v. Halberg, 152 Ind. 139, 51 N.E. 916; Deming-Colborn Lumber Co. v. Union National Savings & Loan Assn., 151 Ind. 463, 51 N.E. 936; Stoermer v. People's Sav. Bank, 152 Ind. 104, 52 N.E. 606; Martin v. Berry, 159 Ind. 566, 64 N.E. 912; Ward v. Yarnelle, 173 Ind. 535, 91 N.E. 7; Gile Investment Co. v. Fisher, 104 Wash. 613, 177 P. 710; Ballard v. Thompson, 40 Neb. 529, 58 N.W. 1133; Frates v. Sears, 144 Cal. 246, 77 P. 905.)

W. P. Guthrie, for Respondent.

In case of doubt as to the time when the limitation of an action begins to run under a statute, that construction must be given which is most favorable to the common-law right of the citizen. (Schneider v. Hussey, 2 Idaho 8, 1 P. 343.)

The provisions of the mechanic's lien law are to be liberally construed to effect its objects and promote justice. (Phillips v. Salmon River Min. etc. Co., 9 Idaho 149, 72 P. 886; Thomas v. Hoge, 58 Kan. 166, 48 P. 844; Blanshard v. Schwartz, 7 Okla. 23, 54 P. 303, 306.)

Pure defenses are held not to be barred by the statute of limitations. (25 Cyc. 1063, n. 91.)

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

On May 3, 1913, J. B. Robinson executed and delivered to appellant a mortgage covering a lot in the town site of Burley. On Oct. 13, 1913, respondent filed in the office of the recorder of Cassia county a claim of lien for material furnished in the construction of a building located upon the premises. Prior to April 1, 1914, respondent commenced an action against Robinson for the foreclosure of its lien. Appellant was not made a party defendant in that action. Appellant commenced this action for the foreclosure of its mortgage Sept. 7, 1914. Robinson and his wife defaulted. Respondent answered, and with its answer filed a cross-complaint, in which it set out its claim of lien and asked for a foreclosure thereof against appellant. The trial court found that the lien of respondent was prior to that of the mortgagee, and decree was entered accordingly, from which plaintiff appealed.

The record does not contain a demurrer to the cross-complaint. However, an objection that the complaint does not state facts sufficient to constitute a cause of action is never waived. (C. S., sec. 6693.) The court should not affirm a judgment where it is apparent that the facts stated in the complaint do not present a sufficient foundation to sustain it, even though the insufficiency of the complaint is not assigned as error. (Wyatt v. Henderson, 31 Ore. 48, 48 P. 790; Hankamer v. County Commrs. Court (Tex. Civ.), 154 S.W. 623; Whitten v. Whitten (Tex. Civ.), 157 S.W. 277.)

C. S., sec. 7349, reads as follows: "No lien provided for in this chapter binds any building, mining claim, improvement or structure for a longer period than six months after the claim has been filed, unless proceedings be commenced in a proper court within that time to enforce such lien; or if credit be given, then six months after the expiration of such credit; but no lien shall continue in force under this chapter for a longer period than two years from the time the work is completed, or credit given, unless proceedings to enforce the same shall have been commenced."

It appears from the record in this case that no credit was given to the owner of the building, and hence the six months' period of limitation applies.

Section 7349 has not been construed by this court with relation to the right of a claimant of a mechanic's lien to foreclose the same against a mortgagee unless his action is commenced against the mortgagee within six months after the claim has been filed. It has been construed, however, by the federal court in the cases of Utah Implement-Vehicle Co. v. Bowman, 209 F. 942; Continental etc. Bank v. Pacific Coast Pipe Co., 222 F. 781, 138 C.C.A. 329; D. W. Standrod & Co. v. Utah Implement-Vehicle Co., 223 F. 517, 139 C.C.A. 65.

In the case of Utah Implement-Vehicle Co. v. Bowman, supra, the question involved was stated as follows: "The precise question therefore, is whether or not a lien claimant under the mechanic's lien law of Idaho loses his priority of lien as against a junior mortgagee, by foreclosing his lien without bringing in and making a party to such foreclosure suit the mortgagee, the period provided by the statute in which the proceedings may be commenced for the enforcement of the lien, expiring during the pendency of the suit."

It was held in these cases that the section should be construed as though it provided that the lien should not continue unless proceedings were commenced in the proper court "against the person or...