Williams v. Pyramid Development Co., Inc., 6 Div. 933

• Decision Date: 28 September 1972
• Docket Number: 6 Div. 933
• Parties: W. E. WILLIAMS, d/b/a Ace Plumbing and Heating Company v. PYRAMID DEVELOPMENT COMPANY, INC., a corp., et al.
• Court: Alabama Supreme Court

Page 752

268 So.2d 752

289 Ala. 473

W. E. WILLIAMS, d/b/a Ace Plumbing and Heating Company v. PYRAMID DEVELOPMENT COMPANY, INC., a corp., et al.

6 Div. 933.

Supreme Court of Alabama.

Sept. 28, 1972.

Rehearing Denied Nov. 30, 1972.

Corretti, Newsom, Rogers & May, Birmingham, for appellant.

Clifford Reeves, Beddow, Embry & Beddow, Birmingham, for appellee.

COLEMAN, Justice.

Complainant appeals from a decree dismissing his bill in equity whereby he sought to establish and enforce a mechanic's and materialman's lien upon a parcel of real estate in the City of Birmingham.

The respondent, San-Ann Service, Inc., a corporation, is, apparently, the owner of the real estate and will be referred to as the owner. Complainant alleges that the owner entered into a contract with the respondent, Pyramid Development Company, Inc., a corporation, whereby Pyramid was to construct a service station on the real estate. Pyramid will be referred to as the contractor.

Complainant alleges that he entered into a contract with the contractor whereby the contractor agreed to pay complainant for installing plumbing fixtures on the real estate and furnishing materials; that complainant performed all his work in a good and workmanlike manner and furnished the materials; that on May 19, 1970, complainant gave notice to the owner that complainant had furnished labor and materials on this job to the contractor; that complainant filed in the 'Probate Office of Jefferson County' a verified statement of lien on June 9, 1970; and that the sum the contractor agreed to pay to complainant is now due.

The bill of complaint was filed July 28, 1970.

Summons to the contractor was issued, and, on July 30, 1970, the sheriff returned 'NOT FOUND' the summons issued to the contractor.

On August 28, 1970, the owner filed demurrer to the bill of complaint. A minute entry recites that the cause was submitted for decree on demurrer on October 8, 1970. On that date the court rendered a decree overruling the demurrer filed by the owner and allowed 'the Respondent' twenty days in which to answer.

On October 27, 1970, the owner filed a motion 'to strike the bill of complaint in this cause on account of a discontinuance of same.' The owner assigns four grounds for the motion, the substance of which is expressed as follows:

'For that complainant proceeded to a submission on this respondent's demurrer in this cause without first having before the court by proper summons and process the contractor, Pyramid Development Company Inc., a corporation, a necessary party to this suit.'

On September 3, 1971, the court rendered a decree which recites:

'This cause came on to be heard upon 'Motion Of Respondent, San-Ann Service, Inc., A Corporation, To Strike Bill of Complaint For Discontinuance'. The Court heard statements and arguments of counsel in Open Court, and finds that, according to the laws and statutes of the State of Alabama, a discontinuance has been occasioned in this cause as set forth in the said Motion and that the said Motion should be granted.

'Accordingly, it is CONSIDERED, ORDERED, ADJUDGED AND DECREED that the Bill of Complaint in this cause should be, and it hereby is, stricken, as prayed in said Motion, and this cause is dismissed, but without prejudice.

'The costs of this action are taxed to Complainant, for which let execution issue.'

Complainant's application for rehearing was overruled October 8, 1971, and complainant appealed.

Rendition of the decree of September 3, 1971, is assigned as error.

Complainant argues that the court erred in striking the bill and dismissing the case '. . . on the grounds that the ruling on the demurrer without service on the other defendant worked a discontinuance of the cause of action.'

The owner replies that the contractor is a necessary party in a proceeding to enforce a materialman's lien, and that complainant caused no alias summons to issue and took no further action whatsoever to bring in the contractor by service of process, and, therefore, this failure of complainant to perform the duty imposed on him to bring in the necessary party worked a discontinuance.

The construction of the statute seems clear that the contractor is an indispensable party respondent in a suit brought to enforce a lien by a party who has furnished material and labor to the contractor.

§ 56, Title 33, recites in pertinent part as follows:

'If the suit is by an employee of the contractor, or by any person who has furnished to him material for the building or improvement, the contractor shall be a necessary party defendant thereto . . ..'

In pertinent part, § 57, Title 33, recites:

'When the lien is sought to be enforced by any person other than the contractor, it shall be the duty of the contractor to defend the suit at his own expense; . . ..'

With reference to these Code sections, this court has said:

'. . .. Section 4774 (Code 1907) makes provision for one who has furnished material to a contractor to give notice to the owner to answer under oath the amount of the indebtedness to the contractor on his contract, and proceedings has against the owner as in garnishment cases; the succeeding section has reference to this proceeding. Nunnally v. Dorand, 110 Ala. 539, 18 South. 5. These statutes, however, require that the contractor shall be a necessary party defendant thereto, and the count under consideration, not only fails to aver who was owner or proprietor of the property, but the record discloses that at the time of the filing of the demurrers to these counts the complaint had been amended by striking Ross, the contractor, as a party to the suit. In this attitude of the record, therefore, this count could not be construed as coming within the provisions of said statute.' Sanitary Plumbing Co. v. Simpson, 200 Ala. 590, 591, 76 So. 948,

'. . .. Under the express language of Sections 56 and 57, Title 33, Code of 1940, it is necessary that the contractor be made a party defendant in a suit brought to enforce a statutory lien by a materialman who has furnished materials ot a contractor. . . ..

'. . .

'Mechanics' liens were not recognized by the common law and the rule seems to be uniform in all of our cases as well as those of other jurisdictions that a mechanic's or materialman's lien is not allowable in equity independently of statute and where such statutory authority is relied upon there must be a strict compliance therewith. (Citations Omitted)' Emanuel v. Underwood Coal & Supply Co., 244 Ala. 436, 439, 440, 14 So.2d 151.

Except as already stated, the record does not disclose any action by complainant to obtain service of summons on the contractor or any circumstances relating to the failure to obtain such service.

'. . .. The courts of Alabama at an early date relaxed the rule of the common law so as to hold that a discontinuance can only be predicated of some positive act of the actor in the proceeding, or in consequence of the actor's failure to perform some precedent duty enjoined upon him by law. (Citations Omitted)' Sales Method Co. v. City Meat Market, 222 Ala. 12, 13, 130 So. 536.

The discontinuance in the instant case can be predicated on complainant's failure to obtain service of process on the contractor. Suit was commenced July 28, 1970. The decree of dismissal was rendered more than one year later on September 3, 1971, after hearing in open court.

Equity Rule 74 recites:

'If the plaintiff shall not, within six months after the filing of the bill, have taken measures to bring in the defendant, his bill may be dismissed.' 1958 Recompiled Code, Vol. 3, page 1283; Title 7, Appendix.

In Clay's Digest, 615, Rule 28, the predecessor of present Rule 74, recites:

'28. If the complainant shall not, before the second term after filing his bill, have taken measures to bring in the defendant, his bill shall be dismissed.'

In the Revised Code of 1852, 721, Rule 28 concludes:

'. . . his bill may be dismissed.'

In the 1940 Equity Rules, Code 1940, Title 7, Appendix, page 1105, Rule 74 appears in the language quoted above from 1958 Recompiled Code.

In Hodges v. Wise, 16 Ala. 509, this court considered Rule 28, Clay's Digest, 615, supra, and held a suit properly dismissed where for five years complainant had failed to obtain service on some respondents who were infants, although service had been had on their mother and her husband who were each made defendants to the bill. This court said:

'. . .. The plain object of the rule was to avoid delay, and to compel complainants to have their causes ripe for hearing by the second terms, as least so far as to have taken measures for bringing in defendants. This object would be defeated if the taking measures to bring in one of several defendants should relieve the party from the operation of the rule in respect to others; or if he could obtain an exemption by resorting to measures to bring in the parties not recognised by law, or the practice of the court, and which prove ineffectual. The rule is a salutary one, and if properly enforced, will, in my judgment, contribute much to relieve the courts of chancery of the complaints too often with justice urged against them, of delays in their proceedings. The rule should not therefore be lightly regarded. . . ..' (16 Ala. at 512)

In present form, Rule 74 reposes in the trial court a discretion to dismiss for complainant's failure to bring in a respondent within six months after filing the bill. The general rule in this respect has been expressed as follows:

'The principle is deducible from the decisions that courts of original jurisdiction--especially courts of equity, but the principle is not confined to them--may exercise their recognized power to dismiss an action because of the plaintiff's failure to prosecute it with due diligence, which is an inherent power and exists independently of any statute or rule of court, where an unreasonable delay occurs in the issuance or service of summons. The question of what...