15 Md. 1 | Md. | 1860
delivered the opinion of this court.
On the 3rd of November 1854, Samtie! Winter, the appellee, filed, in the office of the clerk of the Superior court of Baltimore city, his claim for the sum of $904.64, against the property therein mentioned, and against ffm. G. W. Jaeger,- as owner or reputed owner,” &c., “for doing all the work and furnishing ail the materials done and used in and about the erection and construction of said tenements, the above amount being the balance yet unpaid on account thereof.” The claim then states that “said work was done, and materials were furnished -within the twelve months last past, and the work -when completed "was delivered by the said Winter to the said Jaeger on the 21st day of September last.”
On the 18th of April 1856, the writ of scire facias issued upon this claim. After the return of the writ, judgment by default was entered, which, by consent, was subsequently stricken out.
The appellant, Baker, having filed a petition setting forth his ownership of the property in question, was admitted as a party claimant, to defend the action.
The two defendants severally pleaded non assumpsit, upon which issues were joined.
The verdict and judgment being in favor of the plaintiff, this appeal was- taken by the defendant,- Baker.-
After setting forth all the evidence offered at the trial, the bill of exceptions shows, that the plaintiff then asked an instruction which the court granted.
•The defendant, Baker, then filed a motion “to quash the proceedings in this cause, because upon the filing of the lien upon which scire facias issued, the plaintiff neglected to file a bill of particulars of his claim, in accordance with the Act of Assembly in such case made 'and provided.”
This motion the court overruled; and the defendant then offered three prayers. The first of which was granted, and the others were refused. Whereupon, exception was taken* to the overruling of the motion to q.uash, to the granting of’
During the argument in this court, the defendant’s second and third prayers were abandoned.
Inasmuch as this decision Will be based, exclusively, upon the questions arising under the motion to quash, there is no necessity for considering those Which are presented by the prayers.
It has been contended by the appellee’s counsel that such a motion as this cannot be sustained,- no matter what defects may be apparent on the face of a lien claim. But to such a proposition we cannot yield our assent. The statutory provisions, in regard to the claim to be filed of record, must appear to have been complied with. Carson vs. White, 6 Gill, 27.
In Campbell, Trustee of Harper, vs. Booth, 8 Md. Rep., 107, a motion was made to quash a scire facias upon a judgment in Baltimore county court. The motion was sustained in that court, but reversed on appeal. The reversal, however, resulted from the consideration that the irregularities relied on to sustain the motion, did not appear upon the face of the writ, and did not depend, exclusively, upon matters of record; but the objections were such as- when disclosed by pleading, might present issues of fact proper for the conside ration of a jury.
The objections urged, in argument, in support of the present motion, do not rest upon matters in pais, but are based upon alleged defects ha the lien claim as filed of record. And if there are defects, in matters of substance, showing that the requirements of the- lien laws have not been complied with, we see no good reason Why a motion to quash the sci. fa. is not a proper mode of defence. But it is said, on the part of the appellee, that the motion alleges a single defect; which is, that “the plaintiff neglected to file a bill of particulars of his claim. ’ ’ And this, he insists, was not necessary for him to do; because the.Act of 1845, ch. 287, did not require him, as a Contractor or builder, to file a- bill of particulars, but merely to state in general terms the amount due.
If this be true, then it is proper to inquire whether the reasons urged by the counsel for the appellant to sustain their motion, are sufficient for that purpose. The first is, that the lien claim does not state in general terms, or in any terms, the nature and character of the contract upon which it is based. The second alleges that the claim does not show, with sufficient certainty, that the lien was filed within six months after the work was completed.
According to the decision in Carson vs. White, the Act of 1838, ch. 205, made it necessary that a lien, claimed under that law, should contain a bill qf particulars. This, however, is rendered unnecessary, by the Act of 1845, ch. 287, sec. 2, when the lien is claimed by a contractor or builder. That law declares that, ‘‘'where a claim or lien is filed by a contractor or builder, whether of the whole or of a part of such building, nothing more shall be necessary than to state in general terms the nature and character of such contract, and the amount due under the same.”
In the lien as-filed, Winter’s claim is stated to be “for doing all the work and for furnishing all the materials done and used in and about the erection and construction of said tenements.” Tins is deemed sufficient to show that his claim is made under the provisions of the Act of 1845, ch. 287. The question then arises, have the requirements of that Act been complied with? It is perfectly manifest that they have not-
The 13th sec. of the Act of 1838, eh. 205, requires a lien claim to be filed within six months after the work shall have been finished, or materials furnished. This provision has not been changed by any subsequent legislation.
The claim contains an allegation that, “said work was done, and said. materials were furnished within the twelve months last past, and the work when completed was delivered by the said Samuel Winter to the said William G. W. Jaeger, on the twenty-first day of September last.”
This is considered as equivalent to saying, that on the 21st of September last, the work, when completed, was delivered; or, on the 21st of September last, the work was delivered, when completed.
The claim is dated the 1st of November 1854, and is shown, by the record, to have been filed on the 3rd of the same month, consequently, the “twenty-first day of September last,” mentioned in the claim, was the 21st of September 1854; and, therefore, understanding the language of the claim filed, to mean the work was completed and delivered on that day, it is sufficiently shown that the lien was filed within six months after the completion of the work.
The second reason urged in support of the motion to quash, therefore, does not present a valid objection to the lien. But the first does, and no motion to amend appearing to have been made, on the part of the plaintiff, in the court below, the defendant’s motion to quash should have been sustained.
At the close of the argument in this court, the counsel for •the appellee made a motion to amend the proceedings, claiming the right to have his proposed amendment made here, under the 1st section of the Act of 1845, ch. 28T. The section provides “that such amendments may at any time hereafter be made in the proceedings under the said Acts of Assembly, now pending or hereafter to arise, commencing with the claim or lien filed or to be filed, and extending to
Having decided that the lien appears to have been fded within six months after the completion of the work, no amendment on that subject is necessary. The subsequent remarks must, therefore, be understood as relating to such portion of the appellee’s motion as proposes to amend, by setting forth in the claim, in general terms, the nature and character of the contract, on which the claim is based.
Notwithstanding the apparently comprehensive language of the Act, it cannot be supposed the Legislature designed to authorize such an amendment in this court, having appellate jurisdiction only.
When a case has been tried below upon a claim, which is defective, not merely in form but in substance, without any application there presented for amendment, and an appeal is taken, if the defect should be amended in the court above, a decision upon the amended record will not be a decision upon the case as tried below and brought up by appeal, but one presenting very different questions. Such would certainly be the effect of granting the present application.
Where a scire facias issues upon a lien claim, which the defendant’s counsel believes to be essentially defective on its face, although he may have other valid grounds of defence he may think it quite safe to rely only upon the apparent defect. Should the decision be against tbe defendant and he appeals, then, if in the court above, an amendment of the defect is applied for and granted, and the decision below is affirmed, there can be no opportunity for the defendant ever to avail himself of his other grounds of defence. Whereas, if such amendments are required to be made in the court below, then, the defendant will be in a position where he may present his defence, by such pleas and issues as ma.y be proper for the decision of the court or of a jury.
Whilst such an interpretation of .the statute, as will require the amendments to be made in the court below, cannot do any injury, or operate unjustly, .to the claimant, a different construction might, and most probably would, in many instances, impose great hardships upon defendants.
Believing the court erred- in refusing tifie appellant’s motion, the judgment will be reversed and a procedendo awarded.
, Judgment reversed,and procedeovdo .ordered.
