G. W. Jefferson & Bros. v. Bryant

Allen, J. Tbis action is to enforce a lien under section 2026 of tbe Revisal, wbicb requires tbat “all claims shall be filed in detail, specifying tbe materials furnished or labor performed, and the time thereof,” and it bas been uniformly held, in construing tbis statute, tbat there must be a substantial com *407 pliance witb its terms, and that the statement o£ time is material. Wray v. Harris, 77 N. C., 77; Cook v. Cobb, 101 N. C., 68. The headnote to the Coolc case, which is fully sustained by the opinion, is that, “It is essential to the validity of a laborer’s lien that the 'claim’ or notice which he is required to file shall set forth in detail the times when the labor was. performed, its character, the amount due therefor, and upon what property it was employed; and if it is for materials furnished, the same particularity is required. Defects in these respects will not be cured by alleging the necessary facts in the pleadings in an action brought to enforce the lien.” This rule has been very generally modified when the contract is to complete a building for one sum, and in such case it is not required that the labor performed and the materials furnished shall be itemized, but that the time of the completion of the work shall be stated. The cases are collected in the notes to 27 Cyc., 188. If we apply these principles to the notice of lien in the record, it is fatally defective, as no time is given in connection with any item, and the time when the contract was completed is not stated. The conclusion of the bill of particulars, “with interest from 1 January, 1911,” does not refer to the completion of the contract, as the plaintiff testified it was completed in April or May. The plaintiff contends, however, that this defect was cured by amendment in the Superior Court, and this presents the question of the power of the court to make the amendment. The Superior Court has broad and ample jurisdiction over the amendment, of process and pleadings, but the notice of lien is neither a process nor a pleading, and it was only in the court for the purpose of enforcement. If against real estatej the statute requires it to bé filed before the clerk, and states what is necessary to make it valid. If defective when filed, it is no lien, and to permit an amendment, curing a fatal defect, would be to confer upon the court the power to make a lien, and thus destroy the provisions of the statute. *408 Tbe question has not been directly presented in this State, but the controlling principle has been declared. In Phillips v. Higdon, 44 N. C., 382, Pearson, J., said: “Where the amendment will evade or defeat the operation of a statute, the court has no power to allow it. This is clear; for no court has the power of nullifying a statute. By way of illustration, the statute requires that a levy should describe land in a particular way, for the purpose of informing the defendant in the execution, and all who may wish to become purchasers, what land the sheriff is to sell. If a levy is not sufficient, and a sale under it is made good by an amendment of the levy, the effect is to defeat the operation and purposes of the statute, and to allow land to be sold without the safeguards which the Legislature has provided against surprise and fraud. It might happen that a defendant in an execution, who from the levy, ‘land lying on Carny Fork/ was under the impression that some out tract of his was to be sold, might, after the sale, find himself deprived of his ‘home place’ under the power of the court to allow the constable to amend his levy by adding the words, ‘being the tract of land lying on the forks of the said creek, on which the defendant now resides/ ” and this was affirmed in Cogdell v. Exum, 69 N. C., 464, and in Patterson v. Wadsworth, 94 N. C., 540. This principle has been applied in other jurisdictions to the amendment of a lien. Vreeland v. Boyle, 37 N. J. L., 346; Flume Co. v. Kendall, 120 Cal., 182; Lindley v. Cross, 31 Ind., 110; Goss v. Stelitz, 54 Cal., 640; Jones on Liens, vol. 2, sec. 428; Phillips Mech. Liens, see. 428. In the New Jersey case the Court says: “It is obvious that the lien claim is not a file in the Circuit Court, nor in any court. It is a record in the office of the clerk of the county, like the registry of a deed or mortgage. It is the foundation of the action, but no part of the suit. The record in the Circuit Court begins with the issue of the summons and continues with the filing of the declaration, pleas, etc. The court may amend its own files and records under the authority given in sections 129 and 16'6 of the practice act, but it has not power to alter or amend the records in the county clerk’s office, either by these *409 sections or anything contained in the mechanics’ lien law. Only proceedings in actions in courts can be altered by joining an omitted plaintiff, or striking out one improperly joined, where it shall appear that injustice will not be done by such amendment, and the person affected by the amendment consents. If it were conceded that the court might amend the summons, declaration, and pleas in this ease,' under the extensive power given in section 166 of the practice act, for the purpose of determining in the existing suit the real question in controversy between the parties, yet it cannot, without some express authority, go beyond its own jurisdiction, into the county clerk’s office, and there alter the records so as to make them conform to the changed papers in court.” Being, therefore, of opinion that the lien is defective and that the court did not have the power to amend the same, a new trial is ordered. New trial.