32 Mich. 289 | Mich. | 1875
Complainants filed their petition in the circuit court of Wayne county, in chancery, under and in accordance with the provisions of § 6794 of the Compiled Laws, for the enforcement of a lien claimed by them in the erection of a building for defendant.
No answer was put in by the defendant, the court ruling that an answer was not necessary, and the parties proceeded to a hearing upon the petition.
We think an answer should have been put in by the defendant, so that an issue might have been properly formed. The statute (§ 6794) clearly contemplates that an answer shall be put in.
It is urged that the court ought not to have rendered a decree in favor of the complainants, for the reason that it was not shown on the trial that notice of the filing of the certificate was served on the defendant.
The proviso in § 6790 is as follows: “That no lien created by virtue of this act shall be binding upon the owner, part-owner, or lessee, until he shall have been notified of the filing of such lien with the register of deeds.”
The failure to prove that this proviso has been complied Avith, is fatal to the right of the complainants to recover,— as a lien Avas never created unless this notice was given. It is said, howeAer, by counsel for complainants, that the petition having been SAVorn to, and having set forth that due notice of filing the certificate was served upon the defendant, and the defendant not having denied, in her pleadings, or upon the trial, service of such notice on her, no proof was necessary. We have already said that no ansAver or other pleading Avas put in by the defendant, so that if the position taken by complainants’ counsel is correct, none of the allegations in the petition required any CA'idence to support them, but the entire burden of proof was in the first instance upon the defendant to disprove, them. This, is not correct. The petition is not prima facie evidence on the trial in support of the complainants’ claim. The complainants must be prepared to support their own case, and must show that they have complied with all the requirements of the statute necessary to give them a lien upon the premises of the defendant.
As to the necessity of an answer, and the practice generally in these cases, see Willard v. Magoon, 30 Mich., 273.
The decree must be reversed, with costs.
