Miller v. Barroll

Bartol, J., delivered the opinion of this court. The appellants, on the 16th of December 1854, filed in the office of the clerk of the Court of Common Pleas, their claim upon a dwelling house and appurtenances, for work done and materials furnished, at the instance of Jacob F. Kridler, who, they allege, was the owner of the properly. No scire facias having been issued, the appellee filed his petition in said court, under the 22nd section of the Act of 1838, ch. 205, alleging that he was the owner of the property, and praying that Kaufman and Miller might appear and proceed to establish their lien, as if a scire facias had issued. A trial was had, and the verdict and judgment being in favor of the appellee, this appeal has been prosecuted. It was agreed between the counsel, “that under the plea, non assumpsit, the claimant and defendant might avail of any defence which could be made by special plea, as fully and to all intents and purposes.” In our opinion, the evidence offered by the plaintiffs, in the first bill of exceptions, was properly rejected as irrelevant. The question in issue was, whether the plaintiffs had done the work on the house, on which the lien was claimed, in pursuance of a contract with Kridler to do all the painting on that house, or to do all the painting on all the houses built by Kridler, and the proof offered was, that they had painted several other houses, in 1853 and 1854, for Kridler, and, in each instance, had done the whole painting on said houses. This evidence could not tend to prove the fact for which it was offered. But we think there was error in the ruling of the court on the second bill of exceptions. The testimony of the witness, Miller, of the declaration made by Kridler to one of the plaintiffs, about the time when the house in question and the one adjoining thereto (which Kridler was also building) were commenced, was competent evidence to go to the [183] jury for the purpose stated in the exception, and ought to have been admitted. We are also of opinion that the court erred in refusing the plaintiffs’ prayer, and in granting the second and third prayers of the defendant. They form the third exception, and present the question, as succinctly stated in the appellants’ brief; “whether the sale by Kridier to Barroll, of the house and lot, whilst the house was in process of erection, and unfinished, altered or affected the rights of mechanics who were then engaged in doing, and continued afterwards to do work, under a previous employment by Kridier, when owner?” Both the second and third prayers of the defendant were improperly granted. The latter took away from the jury the consideration of the nature of the contract under which the work was done by the plaintiffs, and the time when such contract was made, and defeated their claim upon proof of the sale alone; and the former erroneously made the rights of the plaintiffs depend upon the relations subsisting between Kridier and Barroll after the sale, whereas the right of the plaintiffs to recover depends upon the question, whether the work done and materials furnished were done and furnished by them continuously, under one contract or employment by Kridier, made while he was owner. That fact was properly submitted to the jury by the prayer of the plaintiffs, which ought to have been granted'. This position is sustained by all the authorities cited by' counsel in the argument, and we refer to them without again repeating them here. All the questions presented by the exceptions were fully argued, and we have expressed our opinion upon them in compliance with the request of the counsel on both sides, who have intimated that thereby the present controversy may be' finally settled without further litigation. We are, however, of opinion, that the objection of the appellee to the jurisdiction of the court in this case was well taken. The jurisdiction of the Court of Common Pleas is limited and defined by the' provisions of the Constitution. It has original jurisdiction only “in suits where the debt or damage claimed shall be over' [184] one hundred dollars, and shall not exceed five hundred dollars7” Art. 4, sec. 10. That provision of the Constitution has been construed by this court in the cases of The State vs. Mace, 5 Md. Rep., 337, and of Blimline vs. Cohen, 8 Md. Rep., 147. What was there said is equally applicable here. The lánguage does not embrace a proceeding to enforce a mechanic’s lien, which is not a suit for debt or damage, but a proceeding ill rem. by scire facias upon a record. 6 Gill, 25. (Decided July 15th, 1859.) In addition to what, has been said in the cases cited from 5th and 8th Maryland Reps., we may add, that the clerk of the Common Pleas Court has no authority to record mechanics’ liens; by the' 15th section of Article 4, they are required to be recorded in the office of the clerk of the Superior Court, and the only jurisdiction to- enforce them is, by the 11th sec. of the 4th Article, conferred upon the Superior Court in which they are recorded. The Court of Common Pleas being without jurisdiction in this case, the j udgment will be reversed without a procedendo'. Judgment reversed.