Brubaker v. Bennett

Basein, J. This is a suit to foreclose a sub-contractor’s mechanics’ lien. A demurrer was interposed to the complaint on the ground that no cause of action was stated. The demurrer was overruled, and on the trial the admission of the notice of lien was objected to by the defendant on the ground [406] that it was not in conformity with the provisions of Section 1386, Rev. Stat. The objection being overruled, the defendant excepted. The ground of the demurrer urged by appellant’s counsel is the same as the ground of said objection. The only defect of the notice claimed by the appellants, is that it fails to state the price, terms, or conditions of the contract between the owner and the original contractor. The section of the statute referred to is as follows: “Every original contractor, within sixty days after the completion of his contract, and every person, save the original contractor, claiming the benefit of this chapter, must, within forty days after furnishing the last material or performing the last labor for any building, improvement, or structure, or for any alteration, addition to, or repair thereof; or performance of any labor in or furnishing any materials for any mining claim, file for record with the county recorder of the county in which the property or some part thereof is situated, a claim in writing containing a notice of intention to hold and claim a lien, and a statement of his demand, after deducting all just credits and offsets, with the name of the owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the material, with a statement of the terms, time given, and conditions of his contract, specifying the time when the first and last labor was performed, or the first and. last materials furnished, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of himself or of some other person.” Sec. 1386, Rev. Stat. Any notice which conforms to the provisions of this section is sufficient, and nothing more than a compliance with these provisions can be required of a lien holder, in order to secure his rights to a lien. [407] There is nothing in said section to justify the claim of the appellant that any lienholder save the original contractor is required to state in the notice the price, terms, or conditions of the contract between the owner and the original contractor. The only thing in this regard which is- required of the sub-contractor is a ‘ ‘ statement (in the notice) of his demand,'after deducting all just credits and offsets, with the name of the owner, if known, and also the name of the person by whom he was employed or to whom he furnished the materials, with a statement of the terms, time given,-and the conditions of his contract.” The sub-contractor does not contract with the-owner, but with the original contractor, and it is the latter contract which is required to be stated in the notice, with terms, time given, conditions, etc., when the sub-contractor claims a lien. The notice in question does this, and in all other respects conforms to the statute. We are therefore of the opinion that the demurrer and objection to the admission of said notice, in evidence, were properly overruled. At the trial of the case the plaintiff asked the court to allow an attorney’s fee to be taxed as costs in pursuance of Sec. 1400, Rev. Stat., which is as follows: “In any action brought to enforce any lien under this chapter, where judgment is rendered for a lienholder, such lienholder shall be entitled to recover a reasonable attorney’s fee, not to exceed twenty-five dollars, to Be fixed by the court, which shall be taxed as costs in the action.” It was admitted that $25.00 was a reasonable attorney’s fee, but the defendants objected to its allowance on the ground that said section violates the provisions of the 14th amendment to the Constitution of the United States, which prohibits a State from denying any person within its jurisdiction the equal protection of the law. [408] The court refused the request of plaintiff, and from such refusal the plaintiff appeals. It is a fundamental principle of our government that all persons are entitled to equal rights and equal protection under the law, and that no law shall be enacted which discriminates against one party for the benefit of another. All laws, so far as the nature of the case will permit, should be uniform and general in their operation. This principle is expressed in the State constitution in this language: “In all cases where a general law can be applicable, no special law shall .be enacted.” Art. 6, Sec. 26, Subd. 18, Const. In the matter of attorney’s fees, or costs in suits, a general law can be made applicable to all parties to the litigation, but Sec. 1400, of the Rev. Stats, is not general, but confers the privilege, upon a certain class of litigants, of recovering as costs, from the opposing party, attorney’s fees, a privilege which none but the favored class of litigants can enjoy under the present laws of the State. Such a discrimination in favor of this class of litigants is violative of fundamental principles and of the provisions of the State constitution. The decree of the court below in sustaining and foreclosing plaintiff’s lien is affirmed, with costs, and the action of the court, from which plaintiff took his cross-appeal is also affirmed, and it is ordered that plaintiff pay the costs of the cross-appeal.