66

lies, regardless of the defendants' residence, and probably this would be the rule in all cases." 67 A court of general jurisdiction so far as the subject-matter of suits is concerned, but of limited jurisdiction territorially, has jurisdiction to foreclose a mechanic's lien on land within its territory, where the defendant, though he lives without such territory, is served with process within it.68 Where an inferior and local court, possessing only limited jurisdiction, is given concurrent jurisdiction to enforce mechanics' liens on land in a certain township, it is essential to its jurisdiction over such a suit that the pleadings should allege that the land subject to the lien lies within such township." Under a statute requiring the claim to be filed with the nearest magistrate, and giving jurisdiction to enforce it to any justice of the county, a lien filed with one magistrate may be enforced by suit before another magistrate of the same county."

Jurisdiction Dependent on Service.

71

§ 521. Where the statutory notice of the commencement of an action to enforce a mechanic's lien is not strictly complied with, a court does not gain jurisdiction to try the proceedings. Thus, where the statute provides that in order to foreclose a mechanic's lien the defendant shall be notified to appear in the supreme court and submit to an accounting, it is held that a notice to appear be fore the clerk of the court confers no jurisdiction.72 The method of

66 Guerrant v. Dawson, 34 Miss. 149.

67 But it has been held in Georgia that the process in a proceeding to enforce a laborer's lien should be made returnable to the proper court of the county of the defendant's residence, if he resides in the state; and the issue made by his counter affidavit should be tried in the same court. Tharpe v. Foster, 52 Ga. 79.

68 Weiner v. Rumble, 19 Pac. 760, 11 Colo. 608.

69 Schell v. Leland, 45 Mo. 289. It had formerly been held that this court (the Kansas City court of common pleas) had no jurisdiction to enforce me chanics' liens. Platt v. Smith, 28 Mo. 593.

70 Boyle v. Robbins, 71 N. C. 130.

71 Jones & Magee Lumber Co. v. Boggs, 19 N. W. 678, 63 Iowa, 589; Otis v. Voorhis, 49 How. Prac. (N. Y.) 273; McKelvey v. Wonderly, 26 Mo. App. 631. But, of course, an appearance in the suit by the defendant cures this defect. Mors v. Stanton, 51 N. Y. 649.

72 Dressel v. French, 7 How. Prac. (N. Y.) 350.

giving notice will be treated of later.73 The filing of a notice of lis pendens is not a condition precedent to an action to enforce a mechanic's lien, and does not go to the jurisdiction of the court."*

76

§ 522. When the lien to be enforced is in favor of co-partners, all the co-partners must join as parties plaintiff in a suit to foreclose the lien.75 And in case of a contract made in the name of one partner for the benefit of the firm, and fulfilled by the firm, all the partners are proper parties to a suit to foreclose the lien, since in equity the real parties in interest are the ones to sue. Where a contract is entered into with a firm, and partly performed by them, and completed by one of the co-partners after dissolution of the firm, the lien may be enforced by action in the name of the firm for the use of such partner.77 And after the death of one co-partner the survivor may sue in his own name, as surviving partner, to enforce a lien accruing to the firm.78 So, too, a joint suit to enforce a mechanic's lien may be maintained by two persons who together have performed labor or furnished materials, for their common benefit and account, in the erection of a house upon the land of another, although they are not general partners. But after a debt due a firm of contractors has been adjusted by giving notes to the different partners, each partner having no interest in the notes given to the others, they cannot sue jointly to enforce a lien, since they have no community of interest.80 And where a man contracted individually to furnish all the materials for a certain building, and, after furnishing part of them, formed a co-partnership, and caused the contract to be completed by the firm, it was held that his co-partners,

73 See post, §§ 591, 592. 74 Julius v. Callahan (Minn.) 65 N. W. 267. 75 Lombard v. Johnson, 76 Ill. 599; Work v. Hall, 79 Ill. 196; Holmes v. Shands, 27 Miss. 40; Hammersmith v. Hilton, 8 Mo. App. 564.

76 Lombard v. Johnson, 76 Ill. 599.

77 Holmes v. Shands, 27 Miss. 40. This was apparently an action at law.

78 Davis v. Church, 1 Watts & S. (Pa.) 240.

79 Rockwood v. Walcott, 3 Allen (Mass.) 458.

80 Bush v. Connelly, 33 Ill. 447.

although interested in the account, were not proper parties to a suit to foreclose the lien, since they had no lien.81 It has been held in Missouri that a building contract in the name of "R. W. H. and J. F. K., of the firm of H. & K.," though signed in the name of the firm, is the contract of the individuals named, so that any third member of the firm is not a proper party to a mechanic's lien suit based on such contract.82 Where it appears that the plaintiff in a mechanic's lien proceeding was not a party to the contract, but a guarantor only, he cannot recover.83

Separate Claimants.

Under some statutes relating to mechanics' liens, parties having liens on a building, but whose claims are separate and distinct, without any community of interest on the claims themselves, can join in an equitable action to establish and enforce their liens.84 But four workmen who have worked for a contractor upon two distinct buildings belonging to different owners cannot join in one suit their four claims, in an attempt to enforce liens therefor on both houses.85 And it is held in Kansas that three separate suits for mechanics' liens under different contracts with the same owner should not be consolidated, since the plaintiffs are not jointly interested in obtaining the relief demanded.86

Assignees.

§ 524. The rights of assignees of mechanics' liens have been already discussed.87 In most states such an assignee may sue in his own name to enforce the lien,88 though in some states suit must be 81 Roberts v. Gates, 64 Ill. 374. 83 Dye v. Forbes, 24 N. W. 309, 34 84 Barber v. Reynolds, 33 Cal. 497; Barber v. Reynolds, 44 Cal. 519; Milam v. Bruffee, 6 Mo. 635; J. A. Treat Lumber Co. v. Warner, 18 N. W. 747, 60 Wis. 183.

82 Hilliker v. Francisco, 65 Mo. 598. Minn. 13.

85 Oldfield v. Barbour, 12 Ont. Prac. Rep. 554. It is said in this case that. objection on the ground of misjoinder may be made by the contractor. 86 Harsh v. Morgan, 1 Kan. 293.

87 See ante, §§ 259, 260.

88 Pensacola R. Co. v. Schaffer, 76 Ala. 233; Tuttle v. Howe, 14 Minn. 145 (Gil. 113); Kerr v. Moore, 54 Miss. 286; Peters v. Railroad Co., 24 Mo. 586; Goff v. Papin, 34 Mo. 177; Jones v. Hurst, 67 Mo. 568; Rogers v. Hotel Co.,.

brought in the name of the assignor for the use of the assignee.9 Where the suit is by the assignee in his own name, it is proper," though not necessary,"1 to make the assignor also a party to the suit. And, where the suit is in the name of the assighor, it is proper to make the assignee a party."2 But where the claimant has assigned part of his account, and the owner has recognized such assignment, the assignee is not a necessary party to a suit by the claimant to enforce his lien for the residue of the account.93 It is held in Missouri that the purchaser of a note given in settlement of a balance due on a building contract, and maturing within the statutory time for proceeding to enforce a mechanic's lien, is entitled pro tanto to a lien against the building, and may enforce it in his own name without any assignment of the account filed by the contractor to establish the lien.94

Defendants in General.

§ 525. In suits in equity to foreclose mechanics' liens, the general rule is that all persons should be made defendants whom the claimant wishes to bind by the decree.95 But a mere agent, through

4 Neb. 54; Skyrme v. Mining Co., 8 Nev. 229; Hoagland v. Van Etten, 47 N. W. 920, 31 Neb. 292; Brown v. Harper, 4 Or. 89; Oliver v. Fowler, 22 S. C. 534; Austin & N. W. R. Co. v. Rucker, 59 Tex. 587; Austin & N. W. Ry. Co. v. Daniels, 62 Tex. 73; laege v. Bossieux, 15 Grat. (Va.) 83; Davis v. Bilsland, 18 Wall. 659. Where a mechanic's lien is assigned after suit to foreclose is commenced, the assignee is properly made a party. Fairhaven Land Co. v. Jordan, 32 Pac. 729, 5 Wash. 729.

89 Phoenix Mut. Life Ins. Co. v. Batchen, 6 Ill. App. 621; Fitzgerald v. First Presbyterian Church, 1 Mich. N. P. 243; Hallahan v. Herbert, 57 N. Y. 409, 11 Abb. Prac. (N. S., N. Y.) 336.

Where a mechanic's lien is assigned pending suit to foreclose, it is not necessary to make the assignee a party. Phoenix Mut. Life Ins. Co. v. Batchen, 6 Ill. App. 621.

90 Pairo v. Bethell, 75 Va. 825.

91 Goff v. Papin, 34 Mo. 177.

92 Williams v. Deutscher Verein (Com. Pl.) 14 N. Y. Supp. 368; Williams v. Illuminating Co. (Com. Pl.) 16 N. Y. Supp. 857; Friedman v. Roderick, 20 Ill. App. 622.

93 Boyle v. Robbins, 71 N. C. 130.

94 Jones v. Hurst, 67 Mo. 568.

95 Whitney v. Higgins, 10 Cal. 547; San Juan & St. Louis Mining & Smelt

whom purchases were made by the owner of the building, is not a proper party to an action to foreclose a mechanic's lien," though such agent is the husband of the owner,97 or even though he is also the contractor for the building, provided he acted towards the lien claimant merely as owner's agent, and not as contractor.98 And, to enforce a lien on the interest merely of a vendee, the vendor of the land is an improper party defendant." A statutory direction that persons who have filed lien claims, as well as those having subsequent liens and claims by judgment, mortgage, or conveyance, shall be made parties defendant to an action to foreclose a mechanic's lien, does not preclude making others defendants when neces sary for a complete determination of the action.100 An interested party who is not made a defendant does not thereby acquire any new rights in regard to the property.101 And according to some authorities a defect of parties defendant may be waived by pleading to the merits without objecting on that ground.102

ing Co. v. Finch, 6 Colo. 214; Snodgrass v. Holland, Id. 596; Johnson v. Bennett (Colo. App.) 40 Pac. 847; Williams v. Chapman, 17 Ill. 423; Lomax v. Dore, 45 Ill. 379; Franklin Sav. Bank v. Taylor, 23 N. E. 397, 131 Ill. 376; Race v. Sullivan, 1 Ill. App. 94; Evans v. Tripp, 35 Iowa, 371; Burbank v. Wright, 47 N. W. 162, 44 Mian. 544; Schaeffer v. Lohman, 34 Mo. 68; Russell v. Grant, 26 S. W. 958, 122 Mo. 161; Monroe v. Hanson (Neb.) 66 N. W. 12; Williams v. Illuminating Co. (Com. Pl.) 16 N. Y. Supp. 857; Brandt v. Radley (Sup.) 23 N. Y. Supp. 277; Tisdale v. Moore, 8 Hun (N. Y.) 19; Lampson v. Bowen, 41 Wis. 484.

96 Hooper v. Flood, 54 Cal. 218; Ferry v. Moore, 18 Ill. App. 135; Whitmeyer v. Dart, 29 Mo. App. 565.

97 Ferry v. Moore, 18 Ill. App. 135.

98 Whitmeyer v. Dart, 29 Mo. App. 565.

99 Laud v. Muirhead, 31 Miss. 89.

100 Williams v. Illuminating Co. (Com. Pl.) 16 N. Y. Supp. 857.

101 Diddy v. Risser, 55 Iowa, 699, 8 N. W. 655; Badger Lumber Co. v. Ballentine, 54 Mo. App. 172.

102 Horstkotte v. Menier, 50 Mo. 158; Mississippi Planing Mill v. Presbyterian Church, 54 Mo. 520; Carney v. La Crosse & M. R. Co., 15 Wis. 503. Contra, Estey v. Lumber Co., 34 Pac. 1113, 4 Colo. App. 165; Kerns v. Flynn, 51 Mich. 573, 17 N. W. 62; Steinmann v. Strimple, 29 Mo. App. 478.

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