46 N.J.L. 161 | N.J. | 1884
The opinion of the court was delivered by
The plaintiff below, Almond, filed a mechanic’s lien claim with the clerk of Union county, on December 15th, 1882, for $600, the price of a machine furnished and set up on November 15th, 1882. The defendant below, Wheeler, was named therein as builder and owner. On January 6th, 1883, Wheeler served a written notice on Almond to commence suit for enforcing his lien within thirty days thereafter, and on January 9th, 1883, filed in the clerk’s office an affidavit of sifch service. Within the period limited in the notice summons was issued on the lien claim, but no entry of the time of issuing such summons was made on the claim until October 11th, 1883, when the Circuit Court made an order that it might be so endorsed. Wheeler had duly interposed the plea that the property was not liable to the lien, and at the trial insisted that the lien had been discharged by reason of the facts above mentioned, but the Circuit Court overruled this defence, and judgment went against him. This ruling is now brought here by exception and writ of error.
In considering the question thus presented it must be borne in mind that this sort of liens exists only by statute, and that consequently the province of courts with reference thereto is mainly that of statutory construction. If in any case those facts appear which according to the written law create a lien or discharge a lien, then the lien is created or discharged; otherwise, not. On turning to the statute touching the point now before us, its language seems to be explicit. The thirteenth section declares that no lien shall be enforced by virtue of the act unless the summons in the suit for that purpose shall be issued within one year from the date of the last work done or materials furnished in the claim; and the time of issuing such summons shall be endorsed on the claim by the
This language plainly provides that failure to endorse on the claim the time of issuing the summons within one year from the date of the last item in the claim, or within thirty days after notice to sue, in case such notice be duly given and affidavit thereof filed, shall discharge the lien as effectually as payment of the debt to the county clerk or to the claimant himself. Such force must therefore be given to this enactment unless good reason exists for defeating its apparent import.
Two reasons are urged: first, that the provision was designed merely to give notice to persons concerned that the lien is in process of enforcement, and therefore unless it be shown that some interest will be unjustly affected by preserving the lien without such notice, the requirement must be regarded as directory only, and compliance with its terms as inessential; secondly, that the powers of amendment conferred by the fourteeenth and twentieth sections of the lien law are sufficient to cure the defect.
With respect to the first reason, it may be conceded that the
There is also another ground, still more obvious. It is-that the legislature has expressly declared what shall be the result of non-compliance with the mandate: the lien shall be thereby discharged. It is impossible to observe the primary rule of giving effect to all the words of the act, without adjudging that the omission to make the endorsement within the time limited abates the lien. Among the various refinements in which courts have indulged while endeavoring to state the distinction between directory and imperative statutes,, none, I think, can be found that would justify us in preventing the consequence which the legislature has said shall follow upon disobedience to its enactment. In the case of Proprietors
We come, then, to the question whether the lien law gives to the judiciary the power of restoring the lien discharged by the omission mentioned.
The fourteenth section enables a justice of the Supreme Court to order a lien claim to be amended, in matter of substance as well as in matter of form, whenever it shall appear to him that such amendment can be justly made.. This power is not broad enough to reach the case in hand. It extends only to the amendment of the lien claim. The defect here ■complained of is not in the claim. It is the want of a notice ■entirely distinct from the claim, and which is to be endorsed thereon only that it may be the more surely seen.
The twentieth section authorizes the Circuit Court in which ■the suit is pending, or any judge thereof, at all times, to amend all defects and errors in any suit or proceeding under the act, •so that the merits of the controversy between the parties may be determined. This also, we think, falls short of the necessary scope. Such amendments only are authorized as will aid in determining the merits of the controversy between the parties. But an order which restores a discharged lien, which, on the controversy whether any lien exists, shifts the legal merits from one side to the other, is not an amendment ■of that character. The court must amend according to the truth, and when it does so in regard to this endorsement it
Hence there was error in the ruling of the Circuit Court on the point presented by this exception, and the special judgment in favor of the lien must therefore be reversed.
In Sewall v. Hawkins the same question is raised as in Wheeler v. Almond, unless it is modified by the following circumstances: A lien claim was filed December 20th, 1882,. without any affidavit; on January 6th, 1883, the owners gave the thirty days’ notice to sue, and filed an affidavit of its service on January 9th, 1883; on January 31st, 1883, the claimants filed another claim, similar to the first, but duly verified, and issued summons within the time limited by the notice, but the time of issuing the summons was not entered on either claim until several months afterwards, when the court ordered it to be done.
These facts do not change the legal aspect of the case..
The first claim was not a nullity; for, at the worst, it was-capable of becoming, by amendment under the act, a perfect claim. Its filing, therefore, gave the owners the right to serve-the statutory notice, and, by their compliance with the law in that particular, the claimant became bound to have the summons issued for enforcing the'lien, and due entry thereof made within thirty days. This obligation he could not escape-by filing a second claim. Whether he had the right to file that without judicial sanction need not be considered. Even if he had, the duties arising out of the notice still remained, and the consequence of failure to see that they were performed was, not. that the claim on file when the notice was given should go for naught, (which might leave the second claim valid,) but that the lien created by the statute should be discharged. When this had occurred, all claims were worthless.
In this ease also, therefore, the special judgment maintaining the lien must be reversed.