James Hunter & Co. v. Truckee Lodge

By the Court,

Beatty, C. J.:

This is an action under the mechanics’ lien law of 1875 (Stat. 1875, p. 122). The plaintiffs and intervenors were sub-contractors or material-men- under Wood & Bichareis, the principal contractors for the erection of appellants’ building. The judgment of the district court was in favor of the lien claimants, and the appeal is from the judgment and also from the order of the district court refusing a new trial.

The motion for a new trial, we think, was properly overruled upon the ground stated in the opinion of the district judge. The decree was entered October 13, 1876; on the eighteenth of October, appellant filed and served a statement on appeal, and its notice of intention to move for a new trial was not filed or served until more than ten days thereafter. On the principle decided in Corbett v. Swift, 6 Nev. 194, the service of the statement on appeal was a waiver of written notice of the filing of the findings of the court, and the notice of intention to move for a new trial not having been given within ten days thereafter was not in time. We shall therefore consider only those errors which are assigned in support of the appeal from the judgment.

1. The lien law provides, sec. 5, that every person claiming under it, except the original contractor, shall file a statement of liis claim “within thirty days after the completion of the building.” In this ease all the notices of liens were filed before the completion of the building, and appellant claims that this was not a sufficient compliance with the law. We think it was. The law is to be liberally construed, and a substantial compliance with its provisions is all that is required. (Skyrme v. Occidental Co., 8 Nev. 239.) The meaniug of the statute, and all that it requires, is that the lien-claimant shall file his notice before the expiration of thirty days after the completion of the building, not that he must decide at his peril exactly when it is finished (a thing that it would often be impossible to do), and file his claim within the ensuing thirty days. There could have been no possible object in such a requirement, while the necessity of fixing a term within which liens of this character must be asserted is obvious. It may be true, as counsel contends, that a sub-contractor’s claim is subordinate to that of the principal contractor, and that neither can have any lien unless or until the building is completed. But if this were conceded it would not necessarily follow that a sub-contractor’s notice of intention to claim a lien would be void if filed before his right was perfected by the completion of the principal contract. If both things are essential to his right of action it still makes no difference which is done first.

2. It is claimed that the intervenors in this case failed to commence proceedings in time. The statute provides, sec. 8, that no lien shall be binding for a longer period than six months after the same is filed “unlessproceedings be commenced in a proper court within that time to enforce the same.”

This action was commenced less than six months after the claims of intervenors were filed, and the plaintiffs caused the statutory notice to other claimants to be duly published. Each of the intervenors filed his petition of intervention in the case within six months after his claim was filed for record. But appellant contends that as these petitions were filed without the previous leave of the court they were wholly unauthorized, and consequently that the intervenors never connected themselves with the proceedings until the day of the trial, which was more than six months after their claims were recorded.

We think that, if it had been necessary for the intervenors to file petitions in order to connect themselves with the proceeding, they were authorized to do so without any order of court, for the statute gave them the absolute right to intervene. But we think the intervenors were connected with the proceeding by force of the statute from the moment the action was commenced and notice published by the plaintiffs. The action was a proceeding to enforce not only the lien of the plaintiffs but all the recorded liens. The holders of those liens not only had the right, but they were obliged to prove up their claims in this action, or be held to have waived them. This court has decided (Elliott v. Ivers, 6 Nev. 290), that in these cases a formal intervention is unnecessary, and that holders of recorded liens may prove them without having pleaded them, and such is the plain meaning of the statute. It was intimated, without being decided, by the supreme court of California (Mars v. McKay, 14 Cal. 129), that a lienholder would be barred of his right of action if he failed to file an intervention before the lapse of six months after filing his lien for record; but we fail to see any good reason for so holding. If the commencement of the first action and the publication of the statutory notice gives the court jurisdiction to determine all the recorded claims, and if the determination of that action bars all claims not presented, it would seem that the holders of all such claims are necessarily connected with the proceeding from the moment of its institution. This construction of the statute can lead to no possible inconvenience, and is in accord not only with its letter but its spirit, which is to afford a simple, inexpensive and summary process for the enforcement of mechanics’ liens.

3. Manning & Duck’s notice of lien, as originally filed and recorded, described the premises to be charged as lot 9 in a certain block in Reno. Before the time for filing notice of their claim had elapsed they discovered that the true description of the premises was a fraction of lot 10 in the same block. The recorder permitted them to change the description in the notice already filed, and made a corresponding changb in the book where it was recorded. It is claimed that it was error to admit proof of this claim. "What would be the effect of such an alteration if there was no other sufficient description of the premises, or if it was fraudulently intended, it is unnecessary to decide. It is sufficient for this case to say that it appears from the statement that no fraud was intended by Manning & Duck, and that their notice contained a good description of the premises without reference to the number, of the lot. It described the building of the defendant situated on a certain block, and it was proved that defendant had but one building on that block, which was well known. The court found that this description was sufficient to identify the premises to be charged with the lien, and that is all the statute requires. (Sec. 5.)

4. Objection was made to the proof of Boyd & Courtois’ claim on the ground that their petition of intervention did not aver that the materials supplied by them were actually used in the construction of tho building of defendant. The objection was overruled, and this is assigned as error. We have already decided that no petitions of intervention were necessary. Boyd & Courtois had filed a sufficient notice of their claim, which showed among other things that the materials charged for had been used in the construction of defendants’ building. Under that recorded notice they were entitled to prove their claim without any additional pleading.

Finally. It'is contended that the district court erred in charging defendants’ building with liens in favor of subcontractors exceeding in amount the sum due to the original contractors when defendants first had notice of the claims of the sub-contractors.

It does not affirmatively appear from the record before us that less was due to the principal contractors than the amount of the liens; the pleadings, the findings of the court and the statement on appeal are silent upon this point. The complaint alleges that the original contract price of the building was nineteen thousand five hundred dollars — more than the aggregate amount of the liens — but fails to allege that any part thereof remained due at the time the liens were filed. There was no demurrer, and the answer is a mere general denial of the complaint without any affirmative allegations whatever. It will 'thus be seen that the proposition to be maintained by appellant under this assignment is that the judgment is erroneous, because it is not averred in the complaint that anything was due to the principal contractors when notice was given of the claims of the respondents. This involves a construction of the law and a question of pleading. In order to pronounce the judgment erroneous it must not only be held that under the law there can be no lien for an amount greater than is due from the owner of the building to the original contractor, but also that a complaint which fails to allege that anything was due when notice of the sub-contractor’s claim was given is so fatally defective that it will not support a judgment in favor of the lien.

The case of Renton v. Conley, 49 Cal. 187, which arose under a statute from which ours was substantially copied, seems to affirm both branches of the proposition, and the decision in that case was followed in Wells v. Cahn, 51 Cal. 423. We think these decisions go too far. Conceding their correctness as to the rights of lien claimants under the statute, it still does not follow that the rule of pleading is as they assume it to be. They give no reason for holding to so strict a rule, and they are professedly based upon earlier California decisions, which went only to the extent of holding that it was a good defense on the part of the owner of the building to show that he had paid the original contractor, in good faith and in pursuance of his contract, before receiving notice of the sub-contractor’s claim. (See 13 Cal. 620 ; 16 Id. 126.) The doctrine of these cases is sufficiently vindicated by allowing to the owner of the building the advantage of his defense, when he himself pleads and proves it.

To hold that the plaintiff and intervenor must aver that he has not paid the original contractor, or that there is still due on the original contract an amount equal to the aggregate of their liens, would be inconsistent with the whole tenor of the law. For, as we have seen, an intervenor is not required to file any complaint or petition of intervention, the evident intention of the law being that his recorded claim shall serve the purpose of a complaint. If, then, a statement of his demand which comes up to the requirements of the statute makes out a prima facie case for a lienholder who intervenes in the action, there would seem to be no reason or consistency in requiring the lienholder who commences the action to allege something more. He could not, in any event, be required to make an allegation on the point in question more than sufficiently broad to cover his own claim, and then, if other liens were proved to a greater amount than he had alleged to be due on the original contract (as we have held they might be), the judgment would be open to the same objection which is urged in this case.

Our opinion is that it was the intention of the legislature to give to material-men and sub-contractors, claiming liens under the law, the benefit of a presumption that contracts made with the original contractor were authorized by the owner of the premises, and, if under the statute, or under the constitution, it is a good defense for the owner to show that he has paid, in good faith and in pursuance of his contract, all that he agreed to pay, before notice of the claims of third parties, he is bound to allege and prove the fact.

The case of Renton v. Conley, supra, was decided a few months before our present lien law was passed, and the rule is invoked that when a statute of another state has received a construction before its adoption here, it is taken to have been adopted as construed. "We think, however, the rule, even if it had been more strictly adhered to in this state, would scarcely be applicable in this instance; for the case in question, although decided, was not reported before the passage of our law, and it can not be presumed that the legislature was aware of the decision.

The judgment and order of the district court are affirmed.