Chevret v. Mechanics' Mill & Lumber Co.

The opinion of tne court was delivered by Scott, J. — The appellants brought an action to foreclose laborers’ liens claimed by them upon certain saw logs. But two lien notices were filed, some of the plaintiffs joining in each, and they all join in the action to foreclose. The claim of each plaintiff is separately pleaded, and was separately stated in the notice of lien. The defendants demurred to the complaint generally, upon the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and the plaintiffs appealed. It is contended that there is no foundation for the liensj because a separate notice thereof was not filed by each claimant. It has been held by some courts that the right [722] to join in such a lien notice must come from a statute. Sec. 1691, Gen. Stat., provides that “any number of persons claiming liens under this chapter may join in the same action, and when separate actions are commenced the court m ay consolidate them.” If they may j oin in one action, we see no reason why they may not as well join in the lien notice; and we think th at this statute, rightfully interpreted, authorizes them to do so. The character of the claims is the same; it is the same property that is being proceeded against; and the proceeding is substantially m rero. A notice of each separate claim can be given in one instrument, although several parties unite therein, and give notice, of several different liens. The filing of one instrument, therefore, is much less expensive. No particular form of notice is required. If it gives a notice of each claim the essential object is fully attained. Some further objections are raised to the notices of liens, in that one of the plaintiffs, Narcisse Pepin, is a claimant in both of them. The amounts he claims vary, and he did not verify the second notice. Also for the reason that Eugene Chevret’s name appears to the jurat of the second notice, and not elsewhere; and because he also is one of the’ parties joining in thefirst notice. That one “-Marshall [the cook],” whose name appears in the body of the notice, as here given, neither signed nor verified it. The first notice, in which eleven of the plaintiffs joined, appears to be sufficient; but the other notice is defective, excepting as to George Ferrari. The general demurrer, however, would not reach these defects. If any of the causes of action in the complaint were well pleaded, the demurrer should have been overruled, and, as a majority of said claims were well pleaded, xhe judgment is reversed, and the cause remanded for further proccedings. Anders, O. J., and Dunbar and Stiles, JJ., concur. Hoyt, J., dissents.