117 Mich. 571 | Mich. | 1898
The complainant erected a building upon premises owned by Bath, finishing the same upon December 10, 1893, his contract having been made on October 2, 1893. On December 1, 1893, and while the complainant was at work under his contract, Schenck took a mortgage upon the premises. On January 30, 1894, complainant filed a lien upon the premises for $373. A stipulation was filed at the hearing, dated March 30, 1896, signed by the solicitor of the defendant Bath, admitting the regularity of all proceedings to enforce the lien, and consenting to a decree for the sum of $333, with interest from February 1, 1894, and costs; and a decree was entered accordingly against Bath. We discover no evidence that the complainant had served upon the landowner, Bath, a statement under oath of the number and names of the subcontractors and laborers in his employ, and of those furnishing materials, and the amount due or to become due to them; and the decree indicates that there was no such testimony, as it contains a finding that the service of the same was waived by defendant Bath. The court held that the mortgage of the defendant Schenck was a prior incumbrance to complainant’s lien, and the decree required the sale to be made subject to the mortgage, and costs were awarded to Schenck against the complainant, who has appealed.
The briefs discuss but one point, viz., whether the failure to serve the notice required by section 4, Act No. 179, Pub. Acts 1891, was a sufficient ground for the holding of the circuit judge that the mortgage should have priority over the lien. We have held that a failure to comply with section 4, Act No. 179, Pub. Acts 1891, is fatal to proceedings to enforce alien. Wiltsie v. Harvey, 114 Mich. 131. This is upon the ground that compliance with such section by serving a sworn statement must be shown, or at the least waived, to warrant the commencement of an action or proceedings to enforce a lien. Martin v. Warren, 109 Mich. 584; Barnard v. McLeod, 114 Mich. 73. Under section 9 of the lien law, as amended by Act No. 199,
The decree is affirmed, with costs.