Lewis & Pickering v. C. W. Williams & Sons

[154] By the Cowrt — Flandrau, J. This is an action by subcontractors-to collect a debt for labor and materials, brought against the principal contractors, who are the Plaintiffs’ immediate employers. It is brought under Section 10 of the Mechanics' Lien Lorn of 1855, Sess. L., 1855, page 59, and the Plaintiffs have joined, as party defendant, the owner of the building upon which the labor and materials were bestowed. The complaint prays a judgment against the principal contractor for the amount of the indebtedness, and that it be decreed a lien upon the building, and for a sale of the building to satisfy the judgment. TheDefendants Lewis & Pickering, the principal contractors, demur to the complaint for a misjoinder of parties Defendant, and also for a misjoinder of actions, in uniting a cause of action against them for the recovery of the debt for the labor and materials, with a cause of action against the owner of the building to enforce the judgment that maybe obtained in such action against his property. In regard to the first point, the objection would not be well taken if the action was only to recover the amount of the indebtedness, because a mere excess of parties Defendant is not cause of demurrer by a party properly sued, and can only be reached by demurrer on behalf of the party improperly joined, and then not on account of a defect of parties Defendant, but because the complaint does not state a cause of action against him. "When a person is made a Defendant, he has a right to insist that all parties jointly liable or interested with him shall be made co-Defendants, and if any are omitted he may raise the question by demurrer to the complaint for non-joi/nd&r; but where he is properly sued, and others are made co-Defendants who have no interest, he may perhaps purge the record of the excess of parties by a motion, but has no cause for demurring. Brownson and wife vs. Gifford et al., 8 How., Pr. R., 389. In this case the Plaintiffs seek to litigate the whole question as to whether the Defendants Lewis & Pickering are indebted to them for their work and materials, and also whether the Defendant HcOlung, the owner of the building upon which they were bestowed, shall be made liable through the means of the lien. [155] The fifteenth section of the lien act provides that where the Plaintiff is a sub-contractor, his remedy against the owner of the building is by scire facias. We had occasion to give an interpretation to this statute in the case of The Rotary Mill Co. vs. Emmett & Keiffer, decided at the December term of 1858, which was an action by the sub-contractor directly against the owner of the building for. the debt. We there held that the proper practice was to procure a judgment for the debt against the principal contractor, and when that was done, it could be enforced in every proper case, by scire facias against the owner of the building. There is no doubt about the propriety of that holding, and we think the statute did not mean to allow any proceedings against the owner until the remedies against the contractor, who is primarily liable, should have been pursued. The Defendant McClung is not a proper party Defendant; and the proceeding against him and his building is improperly united with the cause of action for the debt against the principal contractor. The judgment overruling the demurrer to the amended complaint is reversed, and the case sent down to the District Court for further proceedings.