Plummer v. Eckenrode

Brent, J., delivered the opinion of the Court. From the view we take of this case the judgment must he reversed. While the record is unsatisfactory in showing very clearly from what action of the Circuit Court this appeal is taken, it was conceded in the argument that the appeal is taken, at least, from the refusal of the Court to grant the motion to quash. We shall so consider it. The counsel for the appellee have argued that the motion applied solely to the writ of scire facias, and did not embrace the sheriff’s return made upon it. ’ The record shows that in this they were mistaken. The motion of the 5th of March, 1877, does refer exclusively to the scire facias, hut on the 3rd of April, following, we find another motion to quash, when the defendant by his attorney “moves the Court to quash the writ of scire facias, which issued in this cause against him, and the return of the sheriff thereon.” Six reasons are assigned, and of these the three first are directed to. the sufficiency of the sheriff’s return, and the others to alleged defects in the writ. This appeal must, therefore, he considered as presenting for review in this Court, not only the sufficiency of the writ, hut also the sufficiency of the return of the sheriff. [232] While the 41st section of the Mechanics’ Lien Law requires a liberal construction to be given to its provisions, it is nevertheless necessary that it should be substantially complied with, before a party, seeking to enforce an alleged mechanic’s lien, can do so successfully either in a Court of law or equity. Hess, Reid and others vs. Poultney & Brown, 10 Md., 257. The claim filed in this case is against two buildings owned by the appellant, — the one a tenant house, and the other a barn, — and the amount claimed to be due on each building is separately designated, as required by section 21, of the Article. The proceedings taken by the appellee to enforce his lien is by scire facias. Upon the writ of scire facias, which was issued, the sheriff makes return of scire feci. To this return as well as to the form of the writ, the objections filed in the Circuit Court are directed. Following the order of the objections, the first question presented is the sufficiency of the sheriff’s return. Section 28, (Art. 61,) requires that “ the said writ shall be served in the same manner as other writs of scire facias upon the defendant therein named,- if he can be found within the city or county, and a copy thereof shall be left with some person residing in the building; but if not occupied as a residence, the sheriff shall affix a copy thereof upon the door or other front part of such building,” The terms of this section are mandatory, and point out with precision what notice the sheriff shall give in proceeding to execute the writ. It is not sufficient for him to discharge one of the required duties, but he must discharge both. He is not only to serve the writ in the same manner as other writs of scire facias upon the defendant, hut he is commanded, in addition to such service, to leave a copy with the person occupying the building, or in the event of the building being unoccupied, to affix a copy to the door or other front part of such building. An omission to do so [233] is fatal, and a compliance on the part of the sheriff with one only of these requirements of the law leaves the case in no better attitude than it would be, if the sheriff had failed to make any service at all of the writ. Row does the return of scire feci, endorsed upon this writ by the sheriff, show a sufficient service ? The return of scire feci is the mode of indicating the service of other writs of scire facias, and in this case nothing more can he claimed for such return, than is implied by the 28th section of the law, — that is, that this writ was “ served in the same manner as other writs of scire facias upon the defendant therein named.” The return cannot then, by the most liberal construction, he considered as embracing a duty, which the law requires shall he performed in addition to such service. We must, therefore, hold that the return of the sheriff is insufficient and invalid. It does not show that the required notice has been given by him. In addition to the return of “scirefeci” he should have returned what was done by him in respect to leaving copies of the writ, or affixing them, as the case may be, to the buildings sought to be affected by the liens. At the argument, counsel have requested, that the Court would express an opinion as to the effect of a judgment, sustaining a mechanic’s lien, upon other claimants not parties, where there has been no notice by advertisement in the papers, as required by the 29th section, and the case of McKim and Kennedy vs. Mason, 3 Md. Chan. Dec., 212, has been cited. That question is in no manner raised by this record. It is sufficient, for the case before us, to say, that no such notice is necessary as between the parties to this suit, — the claimant and the defendant. The writ of scire facias is also defective, and for the reason assigned in the objections, filed with the motion, ought to have been quashed. The proceeding is in rem, and the lien law makes each separate building responsible [234] only for the amount, due for material furnished or for work and labor, properly chargeable upon that particular building. If the lien is claimed upon more buildings than one, the amount claimed upon each must he stated, and to this extent the enforcement of, the lien is limited. In the present case the lien claim is filed against two buildings, a tenant house and a barn, amounting to $355.14 upon the tenant house, and to $901.06 upon the barn. These two sums are blended together in the command of the writ, and a lien on each building is claimed for the whole sum of $1262.80. It is to this demand that the defendant is required to appear and show cause. The amount of lien claimed on each building should have been stated, so that the defendant might plead to each separately, and the jury he enabled to ascertain the respective sums due. (Decided 24th January, 1879.) As the case will he sent hack, it is proper to notice the form of the judgment. As it now stands it is a judgment in personam, and could he collected by execution and a levy upon any property belonging to the defendant. The lien law subjects only the building affected by the lien and the land appurtenant thereto, to the payment of such lien, and the judgment ought to designate each building, and the sum of money due upon it. In other words, the judgment should he in rem and not in personam. As the motion to quash ought to have been granted, the judgment will he reversed. The claim for a lien is regularly filed, and the claimant . will he allowed to issue another scire facias if he desires. Judgment reversed, with costs, and the case remanded for further proceedings.