been held that the filing of a lis pendens by the plaintiff is sufficient to preserve the liens of all the claimants who are made defendants.658 Interlocutory Relief. § 594. When necessary to preserve plaintiff's rights, courts will grant injunctions in mechanic's lien suits.659 Thus, the removal of the building by a subsequent judgment creditor may be enjoined.660 And the issuance of execution upon a prior judgment will be stayed, on the petition of a subsequent mechanic's lien creditor, until the curtilage appurtenant to the building has been set out, under the Pennsylvania statute.661 Whether a receiver of rents and profits may be appointed on motion of plaintiff in a suit to foreclose a mechanic's lien is an unsettled question.662 Attachment. § 595. Under the Tennessee statute providing that mechanics' liens shall be enforced by attachment either in law or equity, or by judgment and execution at law, to be levied on the property on which the lien is, an attachment must issue and be levied upon the property in order to preserve or enforce such lien.663 An attachment to enforce a mechanic's lien, being in aid merely of the ordinary remedy by suit, must follow it, and must be issued from the same court which has jurisdiction of the plaintiff's demand, conforming at the same time to the usual conditions as to the affidavit, bond, etc., on which the attachment is issued. If the process be issued in the circuit court, the clerk may issue the attach 658 McAllister v. Case, 5 N. Y. Supp. 918, 15 Daly, 299. 659 Barber v. Reynolds, 33 Cal. 497; Webb v. Van Zandt, 16 Abb. Prac. 314, note; Flickinger v. Huber, 31 Pa. St. 344. 660 Barber v. Reynolds, 33 Cal. 497. 661 Flickinger v. Huber, 31 Pa. St. 344. 662 The right to appoint such a receiver was asserted in Webb v. Van Zandt, 16 Abh. Prac. 314, note, and denied in Meyer v. Seebald, 11 Abb. Prac. (N. S.) 326, note. 663 Dollman v. Collier, 22 S. W. 741, 92 Tenn. 660. But, under the Tennessee statute, relative to mechanics' liens on railroads, it is not necessary for the claimant to issue an attachment. Central Trust Co. v. Condon, 14 C. C. A. 314, 67 Fed. 84. ment, and may administer the necessary oath." Upon a bill filed to enforce a mechanic's lien on a leasehold interest in land, and upon a building, machinery, and fixtures thereon, the attachment should be levied in the manner of attaching realty, and not as in attaching chattels."5 668 Motion and Notice. § 596. Where a motion is made to set aside a sale foreclosing a lien in favor of two persons, notice of such motion must be given to both of them.666 Where a single lien is claimed on several houses, a motion by several defendants to be allowed each to defend separately in respect to his particular house comes too late when made after the issues are all made up. 667 Failure to serve a bill of particulars may be taken advantage of before answering, by a motion to stay the proceeding until the bill is filed. Under a statute requiring notice to be given of the appointment of commissioners to designate the curtilage subject to the lien, it is not necessary to give notice also of the time when the commissioners will view the premises. If the plaintiff fails to reply to the answer, the proper practice is to notify him to reply, and, on his failure to do so, to move to set the case down for hearing on bill and answer.670 It is held in New York that, in a proceeding to foreclose a mechanic's lien, one of several defendants can have no relief against a co-defendant, unless he serves him with notice of trial.671 669 Consolidation of Suits. § 597. It is proper to consolidate suits brought by a contractor against the owner of ground to enforce a mechanic's lien, and a like suit brought by a subcontractor against such owner and principal 664 Brown v. Brown, 2 Sneed. (Tenn.) 431. 665 Burr v. Graves, 4 Lea (Tenn.) 552. 666 Turney v. Saunders, 8 Ill. 239. 667 Wilson v. Merryman, 48 Md. 328. 668 Norcott v. First Baptist Church, 8 Hun (N. Y.) 639. 669 Menner v. Nichols (Pa. Sup.) 8 Atl. 647. 670 Linnemeyer v. Miller, 70 III. 244. 671 Mahoney v. McWalters, 36 N. Y. Supp. 149, 91 Hun, 247. contractor, where both suits relate to the same subject-matter.672 A lien law which provides that a second action shall not be brought where one is already pending to foreclose mechanics' liens on property affected by several lien claims, and that if such action is brought it must be consolidated with the first action, is a mere regulation of practice, and does not make the second action void.673 Where several causes for foreclosure of mechanics' liens for materials furnished have been consolidated, and fully litigated and determined as to the lien claimants, it is immaterial that the causes were so far segregated as to leave issues between the owner and contractor still pending.674 Quashing and Striking Off. § 598. A writ of scire facias to enforce a mechanic's lien may be quashed on motion, if it fails to set forth the details of the claim as required by the statute.675 Under the Pennsylvania practice a mechanic's lien may be summarily stricken off, if the claim of lien is void on its face.676 Thus, where a claim is filed for work done and material furnished in the erection and construction of a building, but the contract attached to the claim shows that the work was really an alteration of an old building, the claim is properly struck off, since liens for erection and for alteration, arising under different acts of assembly, differ in several respects.677 But a mechanic's lien cannot be stricken off by petition based on questions of fact not arising upon the record. 678 Nor should it be stricken off because of the indefiniteness of some of the items of the account," or because the description of the property is indefinite."so After 672 Schnell v. Clements, 73 Ill. 613. 673 Miller v. Condit. 55 N. W. 47, 52 Minn. 455. 674 Wheeler v. Ralph, 30 Pac. 709, 4 Wash. 617. 675 Wilson v. Merryman, 48 Md. 328. 679 676 Lehman v. Thomas, 5 Watts & S. (Pa.) 262; Morrison v. Henderson, 17 Atl. 599, 126 Pa. St. 216; Mitchell v. Martin, 3 Pittsb. R. (Pa.) 474; Hoffmaster v. Knupp, 15 Pa. Co. Ct. R. 140. 677 Morrison v. Henderson, 17 Atl. 599, 126 Pa. St. 216. 678 Frick v. Gladdings, 10 Phila. (Pa.) 79; Shoemaker v. Duganne, 1 Wkly. Notes Cas. 471; Clark v. Miller, 14 Pa. Co. Ct. R. 227; McGuckin v. Coulter, 10 Abb. Prac. N. S. (N. Y.) 128. 679 McCristal v. Cochran, 23 Atl. 444, 147 Pa. St. 225. 680 Hoffmaster v. Knupp, 15 Pa. Co. Ct. R. 140. pleading to the merits, it is too late to move to strike off a lien for defects of form.681 Where a scire facias upon a mechanic's lien has been regularly served, the court cannot order that the lien be marked "Satisfied," on petition by the defendant alleging payment.682 A rule to strike off a mechanic's lien cannot be entered as of course by præcipe filed in the prothonotary's office, since it is not a rule of course.683 Pending suit to foreclose a mechanic's lien, the court has no power, on motion by a subsequent purchaser, to discharge the lien on the ground that it was filed too late.684 And a lien should not be discharged on summary application based on affidavits that the claimant did no work on the premises." Judgment on the Pleadings. 685 § 599. Under the code practice, in an action to enforce a mechanic's lien, the plaintiff having alleged the necessary facts to entitle him to the judgment and relief demanded in his petition, and none of such facts and allegations having been denied, or any set-off or counterclaim, or other fact or matter, alleged or pleaded in avoidance thereof, the plaintiff is entitled to a judgment on the pleadings. 686 Under the chancery practice the court may, upon failure to answer, enter a decree for plaintiff without hearing evidence,87 and may, upon failure to file replication, enter a decree for the defendant, taking the answer as confessed. Where an affidavit of defense was filed to an action by a subcontractor upon a mechanic's lien, judgment cannot be entered for plaintiff, in disregard of such affidavit, on the ground that it was improperly filed, without first 681 Humphries v. Addicks, 12 Phila. (Pa.) 200. 682 Stoke v. McCullough, 107 Pa. St. 39. 683 Bank v. Rush, 2 Wkly. Notes Cas. 186. 684 In re Lien on 740 Broadway, 15 Abb. Prac. N. S. (N. Y.) 336, overruling on this point Lutz v. Ey, 3 E. D. Smith (N. Y.) 630. 685 McGuckin v. Coulter, 10 Abb. Prac. N. S. (N. Y.) 128. 686 Irish v. Pheby, 44 N. W. 438, 28 Neb. 231. Under Laws N. Y. 1873, c. 489, the damages on default could be assessed by the clerk, and an erroneous assessment would not make the judgment a nullity. Welde v. Henderson, 6 N. Y. Supp. 176, 53 Hun, 633. 687 Clear Creek, Colorado, Gold & Silver Min. Co. v. Root, 1 Colo. 374. 688 Linnemeyer v. Miller, 70 Ill. 244. testing the regularity of the affidavit by an appropriate motion to remove it from the file.689 It has been held in Pennsylvania that judgment for want of an affidavit of defense ought not to be given in scire facias upon a mechanic's lien, when the contractor is dead, and his administrator is sued.690 Reference. 693 § 600. In New York the court may order a compulsory reference in a mechanic's lien suit on the ground that the trial of the issue will involve the examination of a long account; 691 but in Wisconsin the court has no power to direct a reference if either party demands a jury trial,692 though a reference ordered with the consent of both parties is valid." In an application to enforce a mechanic's lien, the fact that the court orders the master to ascertain whether there are other creditors having liens of the same kind as plaintiff, though not required so to do, is harmless error, where the master reports that by the certificate of the register no other liens were found in his office, and the case proceeds as if no such reference had been made.694 An auditor to whom a mechanic's lien suit is referred, to hear the parties, examine their vouchers, and state their accounts, has authority to determine the question whether the lien claim was seasonably filed." The rule of the New York supreme court requiring exceptions to the referee's report to be heard in the first instance at the special term does not apply to a reference of the issues in proceedings for foreclosure of mechanics' liens. The court of common pleas in Pennsylvania has power to set aside the report of commissioners appointed under the Pennsylvania act to ascertain and designate the boundaries of the lot or curtilage appurtenant to a building against which mechanics' liens. 696 695 689 Wilkinson v. Brice, 23 Atl. 982, 148 Pa. St. 153. 690 Richards v. Reed, 1 Phila. (Pa.) 220. 691 Tooker v. Rinaldo, 2 Abb. N. C. (N. Y.) 334, note. 692 Druse v. Horter, 16 N. W. 14, 57 Wis. 644. 693 Crocker v. Currier, 27 N. W. 825, 65 Wis. 662. MECH. LIENS-40 (625) |