43 N.J.L. 321 | N.J. | 1881
The opinion of the court was delivered by
The statute relating to mechanics’ liens requires that the lien-claim shall, among other things, contain the name of the person who contracted the debt, or for whom, or at whose request the labor was performed, or the materials furnished for which such lien is claimed, who shall be deemed the builder. It is essential that the proper person shall be named as builder, in order to make the land of the owner liable for the indebtedness contracted by another. The remedy is statutory and the formalities prescribed must be strictly pursued to reach the land. Ayres v. Revere, 1 Dutcher 474; Associates v. Davison, 5 Dutcher 415.
In this case the true builder has not been named in the lien-claim, or in the summons and subsequent proceedings. There can, therefore, be no recovery under the statute unless the amendment asked shall be made, substituting another party on the record. That the court lias large powers to make amendments in lien cases is manifest, for section 20 of the mechanics’ lien law (Rev.,p. 673,) says that it shall be lawful for the court, or any judge thereof, at all times, to amend all defects and errors in any suit or proceeding under this act, so that the merits of the controversy between the parties
This case presents the question whether a party to an action may commit any and every error in practice, whether in form or substance, and make any misstatement of his cause of action, under oath or otherwise, charge whomsoever he will to be his debtor, and claim the right to amend under the statute.
There is a wide difference between a mere mistake and a known misstatement—between a mere error that may happen to any one, however careful he may be in the preparation of a cause, and carelessness which cannot be excused. The statute provides for these differences by making the order for amendment discretionary with the court, for it says (section
The Circuit Court is advised that the order for the amendment should be refused.