24 S.D. 65 | S.D. | 1909
The defendants J. J. Olsen & Son are contractors, and as such contractors they erected a building for the defendant Masonic Building Association. The other defendants and plaintiff were subcontractors in the erection of such building, and had all filed mechanics' liens against the building. Plaintiff brought this action against .the Masonic Building Association, making the contractor and the several other subcontractors defendants. The purpose of this action was to foreclose the plaintiff’s lien, and have the rights of the other lienholders determined. By stipulation the case was tried before a referee, who made findings and conclusions favorable to plaintiff. The referee’s report was confirmed, and, the findings and conclusions having been adopted by the court, a judgment and decree for the foreclosure of the several liens and the disposition of the proceeds on foreclosure sale was entered. The Masonic Building Association, having moved for a new trial and its motion having been denied, appeals from said judgment and order denying a new trial.
It is admitted by appellant that the only proposition it relies upon on this appeal is- as to the legal effect of the failure of plaintiff to give to appellant the notice provided for in section 699 of the Code of Civil Procedure. Appellant admits that the plaintiff complied fully with the provisions of section 697 of said Code, but claims that those two- sections are in conflict, in that they purport to cover the same subject-matter, the regulation for obtaining mechanic’s lien by subcontractors, and they being, as claimed by appellant, in conflict the one with the other, that the section latter in order of place in the statute must be held to be the law on the subject covered by said sections; and that said section 697 ceased to exist upon the adoption of section 699 in its present form. Appellant has cited numerous authorities in support of the above contention, but, inasmuch as we are unable to see the
“Sec. 697. Every subcontractor wishing to avail himself of the benefits of this chapter shall within four months after the material shall have been furnished or labor performed file with the clerk of the circuit court of the county or judicial subdivision in which the building, erection or other improvement to be charged with the lien is situated a just and true account of the demand due him after allowing- all credits and containing a correct description of the property to be charged with said lien and verified by his affidavit.”
“Sec. 699. Every subcontractor may, at any time, within four months-after his labor is performed or materials furnished, make a statement thereof in writing, supported by -affidavit that the same is just and true, and file the same with the clerk of the circuit court of the proper county or judicial subdivision, and give notice thereof, with a copy of such statement to the owner, his agent or trustee, and to the contractor; and from and after the service of such notice, his lien therefor, shall have the same force and effect, and be prosecuted in like manner as a lien by the contractor, but shall be enforced against the property only to the extent of the balance due to the contractor at the time of the service of such notice upon the owner, his agent or trustee.”
A glance over the history of the mechanic's lien law shows that, while such history dates from long prior to the Revised Code of 1877, yet our present statutes are ■ traceable back to that Code. In the said Code of 1877, there was section 656 of the Code of Civil Procedure, being the section from which has come to us section 697, supra. There was also section- 658 of such Code, from which we have derived section 699. In fact, the only change that has ever been made in such. section 658 was the changing of the length of time within which the lien could be filed from six months to four months, which change was made upon the adoption of our present - Code in 1903. There h.ave been several amendments ta the old section 656, a history of which down to and including amendment by the Session Laws of 1883 will be found set out in the case of Albright v. Smith, 2 S. D. 577, 51 N. W. 590. As
Appellant does -not claim there was ever any conflict until in 1903, by the amendment of the old section 658 changing the “six months” to "four months,” as it was now in section 699, supra, the time for filing liens was fixed the same in the two sections. According to appellant's contention, if the amendment had made it
Respondent prays that appellant be mulcted in damages to extent of 10 per cent, of judgment appealed from, claiming that the appeal was taken for delay. While we believe that this rule of court for imposing penalty on appeal brought for delay is salutary, and that we should not hesitate to enforce it in proper cas-e, yet we should feel certain that the reason exists. We could not believe, except upon overwhelming proof, that the attorneys who represent the appellants herein would consent to the taking of, say nothing of advising, an appeal merely for delay. We believe they have too much regard for the oath they have taken as officers of this court.
The judgment of the trial court and order denying a new trial are affirmed.