Greeley, S. L. & P. R. v. Harris

Mr. Justice Hayt delivered the opinion of the court. Of the fifteen assignments of error in this case it is only necessary for us to notice the last, viz.: “The judgment is contrary to law and against the evidence,” as our decision thereon precludes a recovery by the appellee in this action. The complaint does not state, and the evidence does not show, that the appellee made any attempt to comply with section 4 of the act under which the lien is claimed. No statement as required by said section was either served or posted, and, without complying with this prerequisite, appellee was not entitled to a decree establishing a lien upon appellant’s property. The proceeding to enforce a mechanic’s lien is purely statutory, [229] anrl the statute must be complied with; otherwise no lien attaches. Barnard v. McKenzie, 4 Colo. 251; Jensen v. Brown, 2 Colo. 694; Mining Co. v. Finch, 6 Colo. 214-223. That the notice required by section 5 of said act is in addition to, and does not take the place of, the statement required by the preceding section, is manifest from the language used in the fifth section, viz.: “ Every subcontractor, mechanic, laborer or material-man claiming a lien for the amount so specified in such statement or statements * * * shall, within forty days, * * * file a notice,” etc. Clearly, the statement or statements here referred to are those provided for in the preceding section, without the service or posting of which no lien attaches. It is claimed, however, that the lien sought to be enforced in this proceeding is in the nature of an equitable lien against the property of appellant, and that a compliance with the statute in reference to the service of a statement was therefore unnecessary, as the company had notice of appellee’s claim at a time when something was due from it to its contractor. Granting, as we do, that the statute gives a remedy of a beneficent character, and that it ought to receive a liberal construction from the courts, to the end that the purpose and intention of the legislature may be effectuated, still it gives a remedy unknown at common law or in equity, and its provisions must be at least substantially complied with; otherwise no lien will attach. In view of the judgment of the court below in favor of Cox, and without the statement required under section 4 of the act, we know of no principle of law or equity by which appellant’s property can be subjected to the payment of appellee’s claim. Phil. Mech. Liens, §§ 16, 338; Epley v. Scherer, 5 Colo. 536. The judgment is reversed and the cause remanded to the' district court, with directions to dismiss the proceeding. Reversed.