377 A.2d 861 | Conn. Super. Ct. | 1977
The defendant Lafayette Bank and Trust Company has filed a motion to erase this action for the foreclosure of a mechanic's lien on the grounds (1) that the plaintiffs failed to file a lis pendens within one year of the filing of the lien as required by §
A motion to erase will be granted only when it clearly appears on the face of the record that the court is without jurisdiction. Tuccio v. Zehrung,
This defendant, by affidavit, invokes facts not appearing on the record and a plea in abatement *86
is the proper motion under the circumstances. The parties have agreed, however, that the court may decide the issues, and, of course, the question of lack of jurisdiction, once raised, must be disposed of by the court regardless of the form in which it is presented. Kohn Display Woodworking Co.
v. Paragon Paint Varnish Corporation,
The defendant's argument is essentially that because the plaintiffs failed to file a lis pendens within one year of the filing of their mechanic's lien, the lien is invalid as to all parties regardless of whether the party asserting the defect has been prejudiced by the failure to file.
At common law, the equitable doctrine of lis pendens became operative when a suit affecting real property was commenced. "One who purchased property affected by litigation, pendente lite, without any notice, implied or in fact, was nonetheless bound by the judgment or decree in the suit. Every man was presumed to be attentive to what passed in the courts of his state. Norton v. Birge,
The purpose of the lis pendens in the context of a mechanic's lien is the same as it is in any other situation in which real property is the subject of *87
litigation; namely, it is intended to give constructive notice to persons seeking to purchase or encumber property after the recording of a lien or the commencement of a foreclosure suit. 53 Am.Jur.2d, Mechanics' Liens, § 345. In view of the primary purpose of the lis pendens requirement and the remedial nature of the mechanic's lien statute; see City Lumber Co. v. Borsuk,
In the present case, the defendant Lafayette Bank and Trust Company had actual notice of this action and was the defendant named originally. Lafayette Bank cannot claim any prejudice from the plaintiffs' failure to file a notice of lis pendens within the time prescribed by §
Finally, this defendant's argument that the arbitration agreement precludes foreclosure of the lien *88
is without merit. First, the mere existence of an arbitration clause does not waive the right to a lien absent either language expressly so providing or conduct clearly and unambiguously implying such a waiver. See, e.g., Mills v. Robert W. Gottfried,Inc.,
The motion to erase filed by the defendant Lafayette Bank and Trust Company is denied.