Elwell v. Morrow
28 Utah 278
Utah
1904
Check Treatment
McCARTY, J.,

after the foregoing statement of the case, delivered the opinion of the court.

The only question presented by this appeal is, did appellant’s assignor, A. T. Lawrence, waive his lien by failing to exhibit ft in conrt on the date (February 20, 1903) specified in the notice published by Elwell to all other lienholders to appear and exhibit their liens against the property? Under the provisions of section 1386, Eevised Statutes 1898, an original contractor 1 has sixty days after the completion of his contract in which to file for record “a claim in writing containing,a notice of his intention to hold and claim a lien” for any balance that may be due him for materials furnished or work done by him in the construction of a building. And while a right to a lien exists in hj.s favor on the completion of his contract, and for sixty days thereafter, yet no lien in fact is created until he files for record the statement and notice mentioned in section 3391, Eevised Statutes 1898. Jones on Liens, 1430.

In the case of Garland v. Irrigation Co., 9 Utah 350, 34 Pac. 368, this court, speaking through Mr. Chief Justice ZaNE, said: The contract itself does not give the lien, or the right to the remedy to enforce it. .When the work under the contract is done, and the statement is filed, the lien comes into existence, and relates to the time of commencing the work or furnishing the materials; and when the work is done or the materials are furnished, and .the statement is filed, and a breach of the contract has occurred, the right to the remedy exists.” 2 Therefore there is no merit in the contention that appellant’s lien was waived because he did not exhibit it in court with the necessary proofs on the date specified in the notice, which antedates the creation of the lien, and of which neither the appellant nor his'assignor had actual knowledge.

The record shows that the notice referred to and proof of publication were not filed in court, or with the clerk thereof, so as to give the court jurisdiction *2893 of other lienholders, not parties to the action, until April 3, 1903 — more than forty days after the time designated in the notice for such lienholders to exhibit their liens. And furthermore no action was taken or trial had by the court to determine the respective rights of respondents, of appellant, and other lienhold-ers, if any there were, until long after appellant was permitted to intervene, and his complaint in intervention stricken from the files. It is therefore apparent that respondents were in no way prejudiced because of the failure of appellant or his assignor to file for record prior to February 20, 1903, the lien in question, and to exhibit the same in court on that date.

A. T. Lawrence, appellant’s assignor, had sixty days from the time of the completion of his contract in which to file for record his claim of lien; and he could not be deprived of this right by respondent Elwell arbitrarily fixing a date in his published notice requiring all lienholders not parties to the suit to exhibit their liens in court on a date within and before the expiration of the time thus given original contractors by section 1386, in which to file liens. If respondent Elwell desired to compel appellant to appear in court and set up whatever interest he had in or claim against the property by virtue of his right to a lien prior to the time his claim to a lien was filed for record, and within the sixty day limit in which liens must be filed, he should have made appellant a party to the suit, and served him with process of summons. The court in that event would have had jurisdiction to adjudicate and determine his rights, in connection with those of other lienholders properly before it.

The weight of authority is to the effect that the well-established rule that remedial provisions of statutes 4 are to be liberally construed applies to, and should be followed in, proceedings to foreclose mechanics’ liens. Hunter v. Truckee Lodge, 14 Nev. 24; Boisot, Mech. Liens, 34; Philips, Mech. Liens, 16; *290Jones on Liens, 1556; 20 A. & E. Ency. Law (2d Ed.), 278. As the purpose of the law providing for the combining of all liens upon the same property in one action is to save expense, and to enable the court to more conveniently determine the respective rights of the several lien claimants and to distribute the fund accardingly, a substantial compliance with the provisions of section 1391 is all that is required.

We are of the opinion, and so hold, that the court erred in striking from the files, appellant’s complaint in intervention.

The case is reversed, with directions to the trial court to set aside the order dismissing appellant’s complaint in intervention, reinstate the same, and proceed in accordance with the views herein expressed. Costs of this appeal to be taxed against the respondents.

BASKIN, C. J., and BARTCH, J., concur.