96 Va. 598 | Va. | 1899
delivered the opinion of the court.
The facts with which we have to deal are as follows:
Appellants contracted with Wells to erect a three-story brick building in the city of Norfolk, which was completed on the 4th day of July, 1896. On the 30th day of August of that year, Wells perfected his lien as general contractor by filing in the clerk’s office of the Corporation Court of the city of Norfolk an account showing the amount and character of the work done, the material furnished, the prices charged therefor, the payments made, and balance due, and a description of the property upon which he claimed a lien, all of which was duly recorded by the clerk.
At rules held in the clerk’s office of the Court of Law and Chancery of the city of Norfolk on the first Monday in January, 1897, Wells filed his bill to enforce this lien. Appellants were made parties defendant, and into this suit came a number of persons claiming as sub-contractors under the plaintiff, and asking to have their rights protected.
William H. Barnard, doing business as Barnard & Co., also filed a petition in which he alleges that J. W. Wells, the general contractor, had contracted with him to do the tinning, iron work, and plastering, and to furnish the necessary terra cotta pipe and work for draining the building to be erected; that petitioner had fully complied with his contract with Wells, and had on the 31st of July, 1896, filed his mechanic’s lien upon the building in the clerk’s office of the Corporation Court of the city of Norfolk for $1,836.88, that being the balance due to him, and on the next day gave notice in writing to the owners of the property of the amount and character of the lien. Betitioner further avers that on the 26th of December, 1896, he instituted a suit in' chancery in the Circuit Court of the city of Norfolk against Wells, the general contractor, and the owners of the building, to enforce his said lien ¡ that
The prayer of the petition is that the suit instituted by Wells in the Court of Law and Chancery of the city of Norfolk to the first January rules, 1897, (which was Monday the 3d day of the month) may he dismissed, or that he may be restrained from further proceeding therein until the final disposition by the Circuit Court of the city of Norfolk of the suit instituted by petitioner.
By a decree entered April 10, 1897, the cause was brought on to be heard upon the petition of Barnard & Co. and of the sub-contractors, and the petition of Barnard & Co. was dismissed, and the cause referred to a commissioner to state certain accounts. The commissioner having reported in obedience to this decree, a further decree was entered on the first of July, 1897, ascertaining the amounts due the general contractor and the sub-contractors, and directing a sale of the real estate to satisfy their demand. From that decree appellants appealed, and the chief contention is that the court erred in rejecting the prayer of the petition of Barnard & Co.
In Craig v. Hoge, 95 Va. 275, this court had,occasion to examine the law in relation to a conflict of jurisdiction between two courts having concurrent jurisdiction, and it was there held, Judge Riely delivering the opinion, that “ that court which first acquired cognizance of the controversy, or obtains possession of the property in dispute, is entitled to retain it until the end of the litigation, and should decide all questions which legitimately flow out of the controversy; that jurisdiction is acquired by the issue and service of process, and, in
While the suit in that court is not a general creditor’s bill, and did not affect the statute of limitations as to creditors not named as parties to it, there can be no doubt that as to liens claimed by parties to it, and directly involved in the suit, the
We are of opinion that the general contractor could have had complete relief in the Circuit Court which first acquired jurisdiction over the subject of litigation and the parties to it; that from its institution the statute of limitations ceased to run as against his mechanic’s lien and all claiming as contractors under him, and that, as a consequence, this case is controlled by the decision in Craig v. Hoge, supra; and the decree of the Court of Law and Chancery is therefore reversed.
Reversed.