Bell v. Byron

3 Ohio Law. Abs. 434

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: July 1, 1925
• Docket: No. 191460
• Status: Published

Opinion

HURLEY, J.

This action was instituted by Rhoane Bell, seeking the cancellation of what purported to be a mechanics’ lien by Armour Byron and one Brown. In his answer, Byron claims that he has “complied with the law” regarding proper perfection of a mechanics’ lien by delivering a verified copy of his particular claim to Bell, the owner, and a pleading that this verified copy was delivered to Bell, as required by law, was a sufficient allegation of a valid mechanics’ lien.

Bell demurred to Byron’s answer, claiming that provisions of 8312 GC. were absolutely mandatory and that a mechanics’ lien is not perfected until all of the provisions therein contained are complied with to the letter, and unless it is pleaded that ali provisions of this section have been complied with, an action cannot be maintained. The Court held:

1. The legal conclusion of the defendant that he has “complied with the law” is not sufficient, but he must state that he furnished the “owner, part owner, lessee, or mortgagee, or his agent a statement under oath, etc.,” in keeping with the requirements as set out in 8312 GC.

2. The legislature intended that these conditions precedent should be complied with, or otherwise they would not have written them into the statute.

3. This section was intended to be mandatory as contemplated by the following: “Until the statements provided for . . . .the contractor shall have no right of action or lien against the owner, part owner, or lessee.”

4. It is necessary to plead every step taken in conformity with provisions .of 8312 GC. in order to maintain an action in either law or equity.

Demurrers to the respective answers of Byron and Brown will be sustained.