171 N.E. 247 | Ohio Ct. App. | 1929
This case comes into this court on error from the court of common pleas of Hamilton county, Ohio.
The case as it is presented involves the priority of a mortgage over a mechanic's lien. In the court of common pleas the lien was sustained as prior to the mortgage.
It is urged by the plaintiff in error that the record shows that the lienholder failed to comply with the provisions of Section 8312, General Code, requiring a statement by the contractor, under oath, to be furnished the owner, setting forth, among other things, the name of every person furnishing machinery, material, or fuel, and giving the amount, if any, which is due or to become due to them.
The statement in question made by the lienholder contained the remark, under the title "Material," "All material taken out of stock." The record affirmatively shows, in the cross-examination of the lienholder, that material was used upon the job not taken out of stock, furnished by supply houses.
The pertinent portion of Section 8312, General *449 Code, is as follows: "The original contractor shall * * * make out and give to the owner * * * a statement under oath, showing the name of every laborer in his employ who has not been paid in full and also showing the name of every subcontractor in his employ, and of every person furnishing machinery, material or fuel, and giving the amount, if any, which is due or to become due to them, or any of them, for work done, or machinery, material or fuel furnished to him, which statement shall be accompanied by a certificate signed by every person furnishing machinery, material or fuel to him * * *."
Under these facts the provisions of Section 8312 were not followed, and the lien, under the provisions of that section, providing that no right of action or lien against the owner shall be maintained until the statements were filed as required, was void against the mortgage.
It is claimed that if the materialmen were paid it is not necessary to list them. We construe the statute otherwise, and as requiring the listing of all persons furnishing material, whether paid or unpaid at the time of furnishing the statement.
For these reasons, the decision of the court of common pleas will be reversed, and there being no dispute as to the evidence, and the question being one purely of law, the lien of the A.M. Lewin Lumber Company, by virtue of its second mortgage, is held prior to that of the lienholder George C. Ammon.
An entry may be presented accordingly.
Judgment accordingly.
CUSHING, P.J., and HAMILTON, J., concur. *450
