Decker v. Myles

4 Colo. 558 | Colo. | 1879

Stone, J.

Two questions are raised by appellants: 1st.. Whether the notice to other lien claimants was published in compliance with the statute; and 2d. Whether lien claimants not made parties and served with process are affected by the decree. The 9th section of the lien law. of 1872-(Sess. Laws, p. 152), under which the proceedings were had,, requires that “ the plaintiff shall cause a notice to be published at least once a wreek for three consecutive weeks in some newspaper published in the county, if there be one, and if not, then by posting the same in the three most public-places in the county, notifying all persons holding or claiming liens under the provisions of this act on said premises,, to be and appear in said court on a day specified therein, and during a regular term _ of said court, and to exhibit then and there the proofs of their said liens.”

The lien claimant, from whom the appellee derived title under the decree, caused such a notice to be published, three times in three consecutive weeks in a weekly paper,. although less than twenty-one days intervened between the date of the first publication and the time the other lien claimants were therein notified to appear, and the question is presented, whether this was a sufficient notice under the statute above quoted.

An examination of all the authorities we have been able to find, bearing upon this and similar cases, shows some contrariety of decisions by the courts of different States; much of this apparent conflict, however, is due to the construction put upon the precise language of different statutes.

The case most in point against the sufficiency of this notice is that of Shipley v. Mitchell, 7 Blackf. 473, where under a statute requiring publication “for three successive weeks ” before, etc., it was held that, while the language admitted of two constructions, the court was inclined to adopt that which required three full weeks to intervene between the date of the first publication and the time named. In a Pennsylvania case, where a notice was required to be given to a board’of commissioners “ three weeks before the time of meeting,” the court say : “ The order was not for notice during the three successive weeks, nor by a given number of insertions in newspapers in successive weeks, but it required a certain duration of time before the time of meeting,” and, therefore, it was held that “ three full weeks’ notice” was necessary. In re North Whitehall Township, 47. Penn. St. 160.

In the case of Mitchell v. Woodson, 37 Miss. 573, it was held that where the notice was required to be “ published weekly for one month, ” a full calendar month was intended and must be covered by the period of publication, dating from the first. The question in that case seemed to be merely whether a calendar or lunar month was intended, and hence is scarcely in point. The case of Early v. Doe, 16 How. 615, which is strongly relied on by counsel for appellant, is upon a statute requiring publication in some newspaper “ once in each week, for at least twelve successive weeks.” The court held that eighty-four days, the full period of twelve weeks, must intervene between the first publication and the day of sale, in order to give full force and effect to the language of the statute. It is to be observed that the words “at least” are so placed in the sentence as to qualify the number of weeks, and not the number of publications in each week, as is the case in our statute; and in construing this so as to give meaning to the precise language employed, the court say: “We do not doubt if the statute had been c once in each week for twelve successive weeks’ a previous notice of the particular day of sale having been given to the owner of the property, that it might very well be concluded that twelve notices in different successive weeks, though the last insertion was on the day of sale, was sufficient. But where the legislature has used the words £ for at least- twelve successive weeks ’ we cannot doubt that the words £ at least,’ as they would do in common parlance, mean a duration of the time that there is in twelve successive weeks or eighty-four days. Every statute must be construed from the words in it, and that construction preferred which gives to all of them an operative meaning.” Besides these cases which are citéd as sustaining the construction claimed by appellants, there are three cases, which we have not been able to consult, decided by some of the district courts of Pennsylvania, cited as sustaining the same view, by Mr. Freeman, in his work on Executions, wherein he states rather broadly, and with less than his usual care, we think, that “ a majority of the cases upon this subject, * * * shows that the statute requiring notice for three weeks cannot be satisfied by a publication for less than twenty-one days.” On the contrary a different construction is put upon such statute by the highest courts of the States of Illinois, New York, Massachusetts, and Maine. In Garrett v. Moss, 20 Ill. 554, a sale was held valid, made under a decree which required notice of the sale to be ad-. vertised in a certain newspaper “for three weeks successively,” although less than twenty-one days intervened between the date of the first publication and the day of sale. In Pearson v. Bradley, 48 Ill. 250, the same construction is put upon a statute requiring the notice to be published “for three successive weeks, once each week,” and while the court say that the statute may receive either construction, they further observe that “ the legislature, if it had intended to require merely an insertion in three different weekly issues of a newspaper, prior to the day of sale, would naturally have used precisely the language they did use, while if they had intended the first publication should be three full weeks before the sale, they would probably have employed terms more explicit and unmistakable. In Andrews v. The People, 84 Ill. 34, where the notice was to be published “three times for three successive weeks,” the court, following the decision in Pearson v. Bradley, supra, say : “ It is true, three full weeks did not elapse between the dates of the first and last insertion, nor does the reading of the statute require that it should. The publication was made more than three times, and for three successive weeks; * * * we are inclined to hold the notice given a substantial compliance with the statutes.” In Frothingham v. March, 1 Mass. 253, the notification was required to be “printed three weeks successively,” which was to be deemed equivalent to giving “thirty days’ public notice by posting up notification of such sale.” The court say: “ If the law required that all or any of the publications should be thirty days previous to the sale, the defendant has broken his covenant, otherwise not. * * In this case * * the notification was printed three weeks successively. * * The defendant then has brought his case within the express words of the statute, and as it appears to me it is within the sense, the plain and obvious meaning of the words; nor can I conceive any reason for giving them any other construction than that which arises from the common and obvious import of the words used in the act.” The foregoing is quoted from the opinion of Seme-wick, J. Separate concurring opinions upon the same point were rendered by Thacher and Sewell, JJ. In the case of Dexter v. Shepard, 117 Mass. 480, the sale of premises was to be “by public auction, first publishing a notice of the time and place of sale, once each week for three successive weeks, in one or more newspapers, ” etc. The court say: “The notice of the time and place of sale was given in exact conformity to the terms of the power. There is nothing in the mortgage- that requires the first advertisement to be published three weeks before the time appointed for the sale. This point is fully disposed of by the decision in the case of Frothingham v. March, 1 Mass.” The cases of Bachelor v. Bachelor, 1 Mass. 256, and Cass v. Bellows, 31 N. H. 501, cited by counsel for appellee, are upon a different question, and not in point in this case.

In Sweet v. Sprague, 55 Me. 190, the publication was required “three weeks successively.” The publications were made on the 15th, 22d and 29th days of the month, and the sale was advertised for the 30th of the same month. Although but fifteen days thus intervened between the first publication and the day of sale, the court holds that the statute was complied with. In New York this precise question was decided by the supreme court in the case of Sheldon v. Wright, 7 Barb. 40 (overruling an adverse anonymous opinion in 1 Wend. 90), which decision was afterward affirmed by the court of appeals, reported in 5 N. Y. 497.

Another case directly in point is that of Olcott v. Robinson, 21 N. Y. 150, wherein the court of appeals overrule the previous adverse decision of the same case in the supreme court reported in 20 Barb. 148. The statute required the notice to be “ advertised previously for six weeks successively.” The notice was published six times and in six successive weeks, although but thirty-eight days intervened between the first publication and the day of sale, and upon a review of the cases the court say : “It would seem, therefore, that the weight of authority preponderates decidedly in favor of holding that the publication of the notice, in thé present case, was sufficient.” To the same effect is the case of Chamberlain v. Dempsey, 22 How. Pr. 357, where the publication was required “for three weeks immediately previous to the time of sale, at least twice in each week.” A still later case sustaining the same rule of construction, decided by the court of appeals, is that of Wood v. Morehouse, 45 N. Y. 375.

From a review of all the cases cited by counsel on both sides of this case, and all the other cases we have been able to find that bear upon the question, we are satisfied that while the statute in the present case will bear either of the two different constructions contended for, the one acted upon in this case seems to be the most obvious and is supported by the weight of authority. Had the legislature intended that the first publication of such notice should be three full weeks or twenty-one days previous to the time designated therein, nothing could have been easier than to have so expressed it.

One of the statutes enacted by the first legislative assembly of the Territory of Colorado, providing for service as to non-resident defendants, by publication, was in the following language, than which nothing could be more unmistakable in meaning: “Such publication to be made for four successive weeks, the first of which shall be at least' thirty days before the return day of the summons.” Acts of 1861, p. 183. This mode of service was also applied to proceedings to enforce our first Mechanics’ Lien Law. Id., p. 260, § 10.

That the present statute omits to distinctly express that the first publication shall be a given number of days before the time named, tends to strengthen the conviction that a different meaning was intended. Another consideration that should have some weight is that, undoubtedly, titles have passed throughout the State upon notices published as was that in the present case, and their disturbance should be avoided if consistent with a rightful construction of the act in question. That the mode of publication pursued in this case was witihn the' meaning of the statute, we think is supported by reason and authority.

The other question raised by appellants is, we think, settled by the statute itself.

Section 2 of the Mechanics’ Lien Act provides the mode of giving notice by lien claimants of their intention to hold and claim a lien, by filing a statement for record with the county clerk and recorder, and declares that “from the time of such filing all persons shall be deemed to have notice thereof.” Section 9 of the act provides the manner of enforcing the lien by action in the proper court.

Summons is to be served and returned as in chancery proceedings. The defendants proper, and who are to be thus served, we understand to be the owners of the property sought to be charged. Then follows the direction for publication of the notice in the newspaper or by posting, “notifying all persons holding or claiming liens under the provisions of this act, on said 'premises, to be and appear in said court on a day specified therein, and during a regular term of said court, and to exhibit then and there the proof of their said liens. * * * Judgment shall be rendered according to the rights of the parties, and all liens not so exhibited and proved shall be deemed to be waived in favor of those which are so exhibited.”

Here, then, is the statutory mode of giving notice to other lien claimants; first, of the intention to claim a lien by filing the statement; and, second, of the time and place of enforcing the same by the publication aforesaid. Upon compliance with these statutory requirements, by the party enforcing the lien, the other lien claimants are concluded; Phillips on Mechanics’ Liens, §§ 341, 4Ó1.

The judgment of the district court must be

Affirmed.