Sullivan v. Johns

’ The opinion of the Court was delivered by Rogers, J. The act of the 16th of June, 1836, relating to the liens of mechanics and others, directs “ that in filing the claim, the names of the party claimants, and of the owner or reputed owner, of the building, and also of the contractor, architect or builder, where the contract of the claimant was made with such contractor, architect, or builder, must be set forth.” Naming a person as contractor, or owner, or both, when he was such at the time of the contract, would seem to be liable to no objection, arising either from the words or spirit of the act; nor is any error perceived in filing the claim against a person who has become the purchaser after the building is finished, but before the claim is filed, and who remains the owner, or is the reputed owner, at the time it is filed. The owner complains with a bad grace of a proceeding, which gives him notice of the lien on his property, and at the same time an opportunity to make a defence, and which subjects him to no personal liability whatever. At the trial evidence was overruled, because no notice was given of the special matter. It is contended, that the affidavit of defence is equivalent to notice ; but this will not justify us in dispensing with the positive requirement of the rule of Court, which is intended to guard against surprise. As the defendant omitted to give notice, the plaintiff had a right to suppose that all intention of insisting on a set-off had been abandoned. And to this effect is the case of Beyer v. Fenstermacher, (2 Wharton, 97,) where it is said that it has been repeatedly decided, that notice of set-off is necessary, although evidence may have been given of the same matter before arbitrators. The rule of Court is easily observed, and is so clearly beneficial, that it ought not to be relaxed on slight or frivolous pretexts. Besides, the affidavit, even if received as a substitute for notice, is too general to give that information of the special matter which the plaintiff has a right to require. The claim is filed against Nathan P. Sullivan, contractor, and [370] Peter A. Browne, owner. To the scire facias the sheriff returns, “ made known,” as to Sullivan, “ nihil habet,” as to Browne. There is an appearance for one only, but the pleas are for both defendants, the jury are sworn as to both, and the judgment is against both. And this, though irregular, may well stand, because Mr. Browne cannot be injured by-the judgment. He is not personally liable, as has been suggested, even for-costs; for this is a proceeding in rem, and the claimants can only look for indemnity to the building which is incumbered with the lien. It was not disputed at the trial, that Mr. Browne was the owner at the time the claim was filed, nor do I perceive in what aspect that question was material. The intention of the scire facias was to get á judgment against the building, so as to coerce payment out of the proceeds of sale ; and this object may be reached as well by a judgment against the contractor alone, as against both. In ño respect were the defendants injured,, either by the charge of the Court or the judgment; for even had the process been dropped against him, the building would still be liable to the claim of the lien creditors. And the effect would be the same if the issue had been found for him; that is, the plaintiff would be entitled to judgment against the building notwithstanding. The act directs, that the writ of scire facias shall be served in the same manner as a summons upon the defendant, if he can be found in the county, and a copy shall also be left with some person residing in the building, if occupied as a place of residence ; but if not so occupied, it shall be the duty of the sheriff'to affix a copy of such writ upon the door, or other front part of such building. A copy of the summons, as we must presume, has been left or affixed, as is directed, as no objection on that account has at any time been made. The writ was served on pne, and as appears by the return of nihil habet, was not served on the other; and under such circumstances, if the plaintiff had filed a declaration, he would have counted against one only, noticing the fact that the other was not summoned ; and the jury would have been sworn against one; and this would have been the proper course. But although, as before said, the course pursued is irregular, it is not sufficient cause of reversal; as no harm is done. ' The parties are not placed in any worse situation by a judgment against both defendants, than they would have been had the judgment been rendered against one only. An error, without an injury to a party, is no cause.for the reversal of a judgment. Judgment affirmed.