14 Nev. 24 | Nev. | 1879
Lead Opinion
By the Court,
This is an action under the mechanics’ lien law of 1875 (Stat. 1875, p. 122). The plaintiffs and intervenors were
The motion for a new trial, we think, was properly overruled upon the ground stated in the opinion of the district judge. The decree was entered October 13, 1876; on the eighteenth of October, appellant filed and served a statement on appeal, and its notice of intention to move for a new trial was not filed or served until more than ten days thereafter. On the principle decided in Corbett v. Swift, 6 Nev. 194, the service of the statement on appeal was a waiver of written notice of the filing of the findings of the court, and the notice of intention to move for a new trial not having been given within ten days thereafter was not in time. We shall therefore consider only those errors which are assigned in support of the appeal from the judgment.
1. The lien law provides, sec. 5, that every person claiming under it, except the original contractor, shall file a statement of liis claim “within thirty days after the completion of the building.” In this ease all the notices of liens were filed before the completion of the building, and appellant claims that this was not a sufficient compliance with the law. We think it was. The law is to be liberally construed, and a substantial compliance with its provisions is all that is required. (Skyrme v. Occidental Co., 8 Nev. 239.) The meaniug of the statute, and all that it requires, is that the lien-claimant shall file his notice before the expiration of thirty days after the completion of the building, not that he must decide at his peril exactly when it is finished (a thing that it would often be impossible to do), and file his claim within the ensuing thirty days. There could have been no possible object in such a requirement, while the necessity of fixing a term within which liens of this character must be asserted is obvious. It may be true, as counsel contends, that a sub-contractor’s claim is subordinate to that of the principal contractor, and that neither
2. It is claimed that the intervenors in this case failed to commence proceedings in time. The statute provides, sec. 8, that no lien shall be binding for a longer period than six months after the same is filed “unlessproceedings be commenced in a proper court within that time to enforce the same.”
This action was commenced less than six months after the claims of intervenors were filed, and the plaintiffs caused the statutory notice to other claimants to be duly published. Each of the intervenors filed his petition of intervention in the case within six months after his claim was filed for record. But appellant contends that as these petitions were filed without the previous leave of the court they were wholly unauthorized, and consequently that the intervenors never connected themselves with the proceedings until the day of the trial, which was more than six months after their claims were recorded.
We think that, if it had been necessary for the intervenors to file petitions in order to connect themselves with the proceeding, they were authorized to do so without any order of court, for the statute gave them the absolute right to intervene. But we think the intervenors were connected with the proceeding by force of the statute from the moment the action was commenced and notice published by the plaintiffs. The action was a proceeding to enforce not only the lien of the plaintiffs but all the recorded liens. The holders of those liens not only had the right, but they were obliged to prove up their claims in this action, or be held to have waived them. This court has decided (Elliott v. Ivers, 6 Nev. 290), that in these cases a formal intervention is unnecessary, and that holders of recorded liens may prove them without having pleaded them, and such is the plain meaning of the
3. Manning & Duck’s notice of lien, as originally filed and recorded, described the premises to be charged as lot 9 in a certain block in Reno. Before the time for filing notice of their claim had elapsed they discovered that the true description of the premises was a fraction of lot 10 in the same block. The recorder permitted them to change the description in the notice already filed, and made a corresponding changb in the book where it was recorded. It is claimed that it was error to admit proof of this claim. "What would be the effect of such an alteration if there was no other sufficient description of the premises, or if it was fraudulently intended, it is unnecessary to decide. It is sufficient for this case to say that it appears from the statement that no fraud was intended by Manning & Duck, and that their notice contained a good description of the premises without reference to the number, of the lot. It described the building of the defendant situated on a certain block, and it was proved that defendant had but one building on that block, which was well known. The court found that this description was sufficient to identify the premises to be charged with the lien, and that is all the statute requires. (Sec. 5.)
4. Objection was made to the proof of Boyd & Courtois’
Finally. It'is contended that the district court erred in charging defendants’ building with liens in favor of subcontractors exceeding in amount the sum due to the original contractors when defendants first had notice of the claims of the sub-contractors.
It does not affirmatively appear from the record before us that less was due to the principal contractors than the amount of the liens; the pleadings, the findings of the court and the statement on appeal are silent upon this point. The complaint alleges that the original contract price of the building was nineteen thousand five hundred dollars — more than the aggregate amount of the liens — but fails to allege that any part thereof remained due at the time the liens were filed. There was no demurrer, and the answer is a mere general denial of the complaint without any affirmative allegations whatever. It will 'thus be seen that the proposition to be maintained by appellant under this assignment is that the judgment is erroneous, because it is not averred in the complaint that anything was due to the principal contractors when notice was given of the claims of the respondents. This involves a construction of the law and a question of pleading. In order to pronounce the judgment erroneous it must not only be held that under the law there can be no lien for an amount greater than is due from the owner of the building to the original contractor, but also that a complaint which fails to allege that anything was due when notice of the sub-contractor’s claim was given is so fatally defective that it will not support a judgment in favor of the lien.
To hold that the plaintiff and intervenor must aver that he has not paid the original contractor, or that there is still due on the original contract an amount equal to the aggregate of their liens, would be inconsistent with the whole tenor of the law. For, as we have seen, an intervenor is not required to file any complaint or petition of intervention, the evident intention of the law being that his recorded claim shall serve the purpose of a complaint. If, then, a statement of his demand which comes up to the requirements of the statute makes out a prima facie case for a lienholder who intervenes in the action, there would seem to be no reason or consistency in requiring the lienholder who commences the action to allege something more. He could not, in any event, be required to make an allegation on the point in question more than sufficiently broad to cover his own claim, and then, if other liens were proved to a greater amount than he had alleged to be due on the original contract (as we have held they might be), the judgment would be open to the same objection which is urged in this case.
Our opinion is that it was the intention of the legisla
The case of Renton v. Conley, supra, was decided a few months before our present lien law was passed, and the rule is invoked that when a statute of another state has received a construction before its adoption here, it is taken to have been adopted as construed. "We think, however, the rule, even if it had been more strictly adhered to in this state, would scarcely be applicable in this instance; for the case in question, although decided, was not reported before the passage of our law, and it can not be presumed that the legislature was aware of the decision.
The judgment and order of the district court are affirmed.
Rehearing
RESPONSE TO PETITION POR REHEARING.
By the Court,
This case was originally submitted for decision without a very full or satisfactory argument of the main question involved in the last assignment of error discussed in our former opinion. On account of the important interests depending upon a correct solution of that question we felt unwilling to decide it without a fuller argument, and, believing that the appellant was not entitled under its answer to raise the point, we placed our decision upon that ground. But, a rehearing having been granted, the question alluded to has been thoroughly discussed, not only by counsel for the parties, but also by counsel interested in other cases, and we no longer have any motive to refrain from deciding it. We are not satisfied that the ground upon which we based the conclusion reached in our former opinion — the insufficiency of appellant’s answer — is untenable; but since
The respondents are sub-contractors and material-men, and the law under which they claim (Stats. 1875, 122), is in all essential respects a copy of the California lien law of 1868. (Cal. Stats. 1867-8, 589.) The supreme court of that state, at the October term, 1874, decided that, under their statute, sub-contractors and material-men have no lien except to the extent that the owner of the building is indebted to the principal contractor at the time he receives notice of their claims. (Renton v. Conley, 49 Cal. 187.) After that decision was made, but before the publication of the volume of reports in which it appears, our legislature adopted the California statute, and upon the authority of Renton v. Conley, and another case in which it was followed (Wells v. Cahn, 51 Cal. 423), counsel for appellant claims that our statute must receive the same construction. He claims this upon the grounds: 1. That the California statute was correctly construed in those cases; and 2. That even if Renton v. Conley was. erroneously decided, there is nevertheless a conclusive presumption that our legislature, in adopting the statute, intended it to mean what, in that case, it had been construed to mean.
If the second of these propositions is true, we shall have no occasion to consider the first; for our duty ends with ascertaining and giving effect to the intention of the legislature, and if there is indeed a conclusive presumption that the construction given to the law in Renton v. Conley was adopted along with the statute, it becomes a mere question of curiosity whether that case was correctly decided. We shall, therefore, inquire in the first place whether we are bound by that decision.
The rule of construction relied on by appellant is afamiliar one, so familiar in fact that scarcely a volume of decisions
A.s an example in illustration of this statement, we may cite what was -said by this court in McLane v. Abrams, 2 Nev. 206: “It is a rule of construction, too familiar to require the citation of authorities, that where one state adopts the statute of another it is adopted with the construction placed upon it by the highest court of judicature of the state from which it is taken. The reason upon which this rule rests, gives it an importance and weight which should not be disregarded except upon the most urgent reasons. When the legislature of one state adopts the laws of another, it is presumed to know the construction placed upon those laws in the state from which they are adopted, and therefore that it adopts the construction with the law,” etc.
Giving to this language its full and literal effect, and supposing it to be subject to no sort of qualification, it clearly sustains the position of appellant. It would follow that we should be absolutely bound by the decision of Renton v. Conley, even if it had been rendered but a day before and set aside the day after our statute was approved by the Governor. But nothing is better settled than that the language of every opinion is to be understood in a qualified sense — qualified, that is to say, by the facts of the case. It is a decision only upon those facts, and so far as it transcends them is merely dictum.
Now, in McLane v. Abrams, the court was considering a statute which had been copied from the laws of California verbatim nine years after it had been construed by the su
In this view it becomes important to ascertain the origin and reason of the rule.
As to its origin it is undoubtedly a mere adaptation of the rule of construing statutes that were re-enacted after having been repealed, or after having expired by their own limitations or become obsolete. In such cases there was a natural and just presumption that the legislature was informed of any decision, however recent, of its own highest courts, giving a construction to the law proposed to be reenacted, and there was a further and very cogent presump
When, however, a question arises as to the construction of a statute adopted from another state, it is clear that the decisions of that state construing the law derive no additional force from the doctrine of stare decisis. They are binding, if binding at all, only because they afford conclusive evidence of the actual intention of the legislature; and it is manifest that they can afford no such evidence unless there are good reasons for presuming them to have been actually known to the legislature when the law was adopted. This consideration is essential to a just appreciation of the rule, and a reference to the language of the earlier cases in which it was applied will show that at first it was constantly borne in mind. Those were cases in which statutes were to be construed that had been adopted in this country after having been in force in England for hundreds of years and their construction settled by long series of decisions.
Under such cireúmstances, it was eminently just to presume that their construction was known, and therefore adopted along with the statutes themselves.
In Downey v. Hotchkiss, it was held that the legislature of Connecticut, in adopting the English statute of frauds, also adopted its long-settled construction by the English courts. (2 Day, 225.) In Kirkpatrick v. Gibson, Chief Justice Marshall said: “ I am the more inclined to that opinion because it is reasonable to suppose that where a British statute is re-enacted in this country we adopt the settled
At a later period the principle established by these decisions was invoked in the construction of statutes borrowed by one state from another, and in the more recent cases a tendency may be observed to give a wider scope to the rule and to ignore the wholesome and necessary limitations under which it was first applied. This, however, is a tendency to be deprecated, and, so far as possible, avoided. It has probably resulted from the fact that the courts have found themselves unable to draw any definite line of distinction between such long-settled constructions as a legislature may reasonably be presumed to know and those more recent constructions to which no such presumption fairly attaches. It being once held that a legislature must be presumed to have known the long-settled construction of a statute adopted from another state, the rule thence deduced was naturally invoked in cases where the construction was more and more recent, and there being no means of fixing a limit of time within which it could be held that such pre
But so far as we have observed no court has gone to the extent of holding that the decision of another state can be presumed to be known antecedent to its official publication; and we think that here at least a safe and practical and reasonable limit may be set to the operation of a rule already too much extended. We do not say that we should feel bound to conform to the decision of the highest court of another state merely because it was published in an official report before our adoption of a statute construed by it, but w'e do feel safe in holding that before such publication there ought to be no presumption that the decision was known to our legislature, and consequently that no inference of their intention can be drawn from any such presumption.
It is certainly true, as contended by counsel for appellant, that no case has been found in which this distinction has been recognized, but this is accounted for by the fact that no case has been found in which the facts warranted a decision based upon any such distinction. We are, however, sustained to this extent by the cases cited below. In frequent instances the courts have taken pains to show by comparison of dates and otherwise that it was reasonable to presume that the previous construction of borrowed statutes was actually known to the legislature by which they were adopted; and in one case, Campbell v. Quinlin, 3 Scam. 289, some stress was laid upon the fact that the decisions had not only been made but the “ reports published to the world” prior to the adoption of the statute in question.
We think we are entirely justified, in view of all the cases, in qualifying the rule at least to the extent above stated. Nor do we anticipate that we shall thereby bring upon ourselves any of the inconveniences suggested by counsel. We are asked how we are to know when a decision is first published, and if we are not aware that they are frequently, if not always, published in the newspapers and in law magazines in advance of the official reports. Our answer is that
We refer to the following cases as bearing more or less directly upon the point above discussed: (See cases cited at page 52 of Cooley’s Constitutional Limitations; also, McKenzie v. State, 11 Ark. 596: Draper v. Emerson, 22 Wis. 150; Poertner v. Russell, 33 Id. 193; Harrison v. Sager, 27 Mich. 478; Greiner v. Klein, 28 Id. 22; State ex rel. M. and M. Railroad Company v. Macon county, 41 Mo. 464; Snoddy v. Cage, 5 Texas, 108.)
Upon these authorities, and for the reasons above stated, we say as we said before, that there is no reason to presume that our legislature, when it adopted the California lien law, knew of the construction it had received in Renton v. Conley, and consequently it can not be presumed that the law was intended to mean what it was there held to mean, unless such intention is fairly deducible from the terms of the statute itself. We are thus brought back to appellant’s first proposition, viz.: that the California statute of 1868, from which our statute of 1875 was copied, was correctly construed in Renton v. Conley.
We regret to say that after a most careful examination of the statute in question, as well as of the whole course of legislation and judicial construction in California on the subject of mechanics’ liens antecedent to that decision, we are forced to the conviction that sub-contractors and material-men were thereby deprived of the rights which it was the intention of the legislature to give them.
In discussing the relation of owners of buildings to subcontractors and others, Mr. Phillips, in his work on Mechanics’ Liens says‘ ‘ The protection of the sub-contractor and material-man, with a just regard to the rights of the owner
A comparison of the statutes and decisions of California on the subject of mechanics’ liens gives us the impression that the legislature and supreme court of that state have most of the time since 1858 been acting at cross purposes. By various amendments to the statute the legislature has evinced an intention to establish the Pennsylvania system, but the law has been construed at every stage of its development into a mere embodiment of the New York system. The strong leaning of the court in favor of the latter system has been the result of what is probably an enlightened view of the true policy of legislation on this subject; for it seems that the plan of conferring on subcontractors and material-men a right of lien for all sums which may be due them, irrespective of payments already made by the owner to the contractor, is passing out of favor, and that the tendency in the later legislation in the various states of the union is to confine their right to what may be
Put although it may be true that the supreme court of California has at all times had a more just conception than the legislature of what the law ought to be, we can not help thinking that their lively appreciation of the injustice to which owners of buildings might be subjected under the Pennsylvania system has biased their judgment in the construction of the acts of the legislature.
By the first section of the act of 1856 (Cal. Stats. 1856, p. 203), it was enacted that: “All artisans, builders, mechanics, lumber merchants, and all other persons performing' labor or furnishing materials for the construction of any building, wharf, or superstructure, shall have a lien on such building, wharf or superstructure for the work and labor done or material furnished by each respectively.”
This section by itself would seem to give to sub-contractors, etc., a direct and absolute lien on the building for the amounts due them; but the provisions of section 3 were perhaps sufficient to justify the supreme court in holding that it was not the design of the legislature to make the owner responsible except upon notice, or to a greater extent than the sum due to the contractor at the date of the notice. (See Knowles v. Joost, 13 Cal. 621.) Section 3 of the act of 1856 was as follows: “ On being served with a notice by a subcontractor as provided in the last preceding section, the owner of such building, wharf or superstructure shall withhold from the contractor out of the first money due, or to become due to him under the contract, a sufficient sum to cover the lien claimed by such sub-contractor, journeyman or other persons performing labor or furnishing materials, until the validity thereof shall be ascertained by a proper legal proceeding if the same be contested; and if so established the amount thereof shall be a valid offset,” etc.
But in 1858 this section was amended so as to read as follows: “Everysub-contractor, journeyman, * * * shall, under the provisions of this act, have a valid lien upon the building, wharf or superstructure on wffiich such labor was performed, or for which such materials were furnished, re-
To our minds this amendment to tbe statute clearly indicates tbe intention of tbe legislature to make tbe owner responsible to sub-contractors and material-men for the amount of their claims, notwithstanding previous payment to tbe contractor of tbe entire contract price, provided, of course, they complied with tbe requirements of- section 2, as to claiming, recording and serving notice of their liens. Tbe first part of tbe section is positive to that effect, and tbe latter part does not qualify it — it merely gives to tbe owner a means of protection pro tanto, in case any portion of tbe contract price is still due, or to become due.
But, notwithstanding the pointed and stringent terms of this amendment, it was held in McAlpin v. Duncan, 16 Cal. 126, that it gave no additional rights to sub-contractors and material-men. Tbe effect of tbe decision being that tbe law was left by tbe amendment exactly as it was before; or, in other words, that tbe legislature bad taken tbe pains to amend tbe law without any intention of changing it. Tbe only argument by which it was attempted to support this conclusion was an enumeration of tbe grave inconveniences which it was supposed would ensue if tbe language of tbe statute should be allowed its natural and obvious effect. This sort of argument is never very conclusive, and its force in this instance is greatly impaired by tbe fact that several of tbe states, for the sake of giving more complete protection to mechanics, laborers, etc., have long been contented to endure all tbe mischiefs involved in what Mr. Phillips calls tbe Pennsylvania system.
But it is not with the law of 1858, or tbe case of McAlpin v. Duncan, that we are particularly concerned. In 1862 tbe legislature of California repealed all existing laws on
For instance, it was enacted in the first section that every mechanic, artisan, lumber merchant, etc., should have a lien for his labor or materials ‘ ‘ whether furnished at the instance of the owner of the building or other improvement or his agent,” and for the purposes of the act “every contractor, sub-contractor, architect, builder or other person having charge ” of the> work or improvement was declared to bo the agent of the owner.
In all these strongly marked features the law of 1868 differed from that of 1858, and it is a significant circumstance that they were all left out of the code, which was prepared by the code commissioners and adopted by the legislature in 1872. Those commissioners undertook to provide (Code of Civil Procedure, sec. 1183), that the aggregate amount of liens should never exceed what “ the owner would be otherwise liable to pay,” and it is evident they thought it necessary to strike out the provisions above referred to in order to make the code consistent with itself. It is to be presumed this portion of the code was unwittingly adopted by the legislature, for at its next session, in 1874, the amendments of the code commissioners were stricken out and the law of 1868 re-enacted. (See 2 Hittell’s Codes and Statutes, secs. 11,183, 11,192, 11,193.)
After all this industrious changing of the law, Renton v. Conley was decided upon the assumption that it remained exactly what it had been before. In this view we are unable to coincide. On the contrary, we think the language of the statute, without reference to the significant circumstances under which it was amended and re-amended in- California, leaves no room for doubt that the legislature intended to give sub-contractors and material-men direct liens upon the premises for the value of their labor and materials, regardless of payments on the principal contract made prior to the time within which the law requires notice of their claims to be recorded. In support of this conclusion, we refer to Colter v. Frese et al., 45 Ind. 97, in which most of the cases
Concurrence Opinion
concurring:
I concur in the judgment of affirmance upon the ground that appellant, having failed in its answer to allege that there was not anything due to the principal contractors at the time of receiving proper notice of the claim of the subcontractors, is not in a position to raise the material question discussed in the opinion of the chief justice, as to the proper construction of the statute.
