Lefler v. Forsberg

1 App. D.C. 36 | D.C. Cir. | 1893

The Chief Justice

delivered the opinion of the Court:

The appellants have assigned three grounds of error in the decree: First, that the notice of intention to claim the lien did not conform to the requirements of the statute; that the claim should have been made out against the former owner of the property with whom the contract was made; and not against the subsequent purchaser thereof, and therefore the recorded notice of the lien was defective. Second, that the statute gives no right to a lien for the construction of an electric elevator in a building; and, Third, that Shreeve should have been made a party defendant to the suit.

1. With respect to the first alleged ground of error, we think it is clear that it is not well founded. If the claim for lien had been filed and notice given under the law as it existed prior to the act of Congress of the 2d of July, 1884, Ch. 143, there would have been strong color for the contention of the appellants. For, by Section 696 of the Revised Statutes relating to the District of Columbia, it was provided' that the lien should cease at the end of one year after the completion of the building, etc., unless before that time an action was commenced by the party claiming to enforce such lien, “against the owner with whom or with whose agent the contract was made.” This provision, construed in connection with the preceding Section 693 of the Revised Statutes, would seem to have required that the claim and notice should have been made and directed against the original owner with whom the contract was made. But this provision of the Revised Statutes is no longer in force, and it has been superseded by quite a different provision in the act of Congress of 1884. By this latter act it is provided “that every building hereafter erected or'repaired by the owner or his agent in the District of Columbia, &c., shall be subject to a lien in favor of the contractor, &c., for the payment for work or materials contracted for or furnished for or about the erection, construction or repair of such building, and also for any engine, machinery, or other thing placed in such building or connected therewith so as to be a fixture: Provided, that the person claiming the lien shall file the notice prescribed in the second section of this act.” And by the second section of the act it is provided, “that any person wishing to avail himself of the provisions of this act, &c., shall file in the clerk’s office during the construction, or within three months after the completion of such building or repairs, or the placing therein or adjacent thereto of any engine, machinery or other thing as aforesaid, a notice of his intention to hold a lien upon the property declared by this act liable to such lien for the amount due or to become due to him, specifically setting forth the amount claimed.”

As will be observed, the act of 1884, Ch. 143, does not specially require the notice to be filed or the proceeding taken against the owner of the premises who made the contract for the work or materials supplied; but simply requires of the claimant a notice of his intention to hold a lien upon the property for the amount of his claim, specifically set forth. The proceeding to fix and enforce the lien is in its nature a proceeding in rem ; and one of the great objects of the law is to furnish to all concerned and interested in the property, record notice of the extent of the claim and the intention to enforce a specific lien therefor. The claim in this case was made out against the party who was owner of the property at the time the right to assert the claim accrued; and looking to the object of the law, this would seem to be a substantial compliance with its provisions in this respect.

2. The second ground of supposed error is clearly untenable. An electric passenger elevator, placed in a building for use, becomes a fixture of the building, and would seem to be fairly and fully within the definition of either an engine or a machine. The word engine is defined, according to lexicographers, as any ingenious or skillful contrivance used to effect a purpose, and is often used as synonymous with the term machine. The latter term is of larger definition, but one of the most commonly accepted definitions of that term is, any mechanical contrivance, as the wooden horse with which the Greeks entered Troy; a coach; a bicycle, &c. See Webster’s Diet., Worcester’s Diet. Indeed, the definition of the noun elevator is that of a mechanical contrivance; a cage or platform and the hoisting machinery in a hotel, warehouse, mine, &c., for conveying persons, goods, &c., to or from different floors or levels. An electric passenger elevator is certainly a mechanical contrivance, and is both an engine and machine; and whether its motive power be electricity, water or steam, can make no difference in the contemplation of the statute.

3. The third and last supposed error assigned, we think, is equally without substantial foundation. Shreeve was not a necessary party, and no process or judgment was prayed against him. It does not appear that he was at all interested in the premises. It is not shown that he was bound by covenant in his deed against incumbrances, or that he would be affected in any manner by the judgment that was prayed for by the claimant, and as no judgment was sought against him, it was quite needless to make him a party to the suit. This is clearly indicated by the provisions of the statute.

Section 5 of the act of Congress of 1884, Ch. 143, provides that the proceedings to enforce the lien shall be by bill in equity; and that all persons who are interested in the premises, so far as they are known, shall be made parties complainants or defendants; and if sale be decreed of the premises, and the proceeds thereof are insufficient to pay all liens under tire act, the balance of such liens “ shall stand as a judgment against the party who incurred the debt, if he be made or become a party to the suit, but not otherwise.” It is, however, provided by Section 7, that “no final adjudication shall be had until all persons who shall become interested in the building subject to such lien under the provisions of this act, shall have an opportunity to be heard in said suit, provided such interest was vested at the time said suit was brought, or be acquired within three months thereafter, and such person shall intervene in said suit within said term of three months.”

But in this case, as we have seen, no process or judgment was prayed for as against Shreeve, and he did not seek so to intervene upon the ground of interest in the premises, nor upon any other ground; and there is no interest apparent that would make it necessary that the claimant should make him a party to the proceeding. The judgment appealed from, however, is not one in rem, but strictly in persottam, under Section n of the act of 1884. By that section of the act it is provided “ that in all proceedings under this act the defendant may file a written undertaking, with two or more sureties, to be approved by the court, to the effect that he and they will pay the judgment that may be recovered, and costs, which judgment shall be rendered against all persons so undertaking, and thereby release his property from the lien hereby created.” And it is further provided, that “if such undertaking be approved before the filing of the bill in equity to enforce the lien, the said sureties shall be made parties thereto; and if after the filing of said bill, said sureties, upon the approval of said undertaking, shall ipso facto become parties thereto; and, in either case, the decree of the court shall run against them as well as the principal in such undertaking.” Here, before the filing of the bill, Lefler, as the owner and principal, together with Ross, Moulton and Bond as sureties, entered into the undertaking, and they were all made parties; and it was against them, in respect to their personal undertaking, that the decree was entered. We find no error in that decree, and it must therefore be

Affirmed.