Ryan v. Kelly

9 Mo. App. 396, 1880 Mo. App. LEXIS 155

• Court: Missouri Court of Appeals
• Decided: November 30, 1880
• Status: Published

Opinion

Bakewell, J.,

delivered the opinion of the court.

This was an action by a subcontractor against the contractor and owner, to enforce a mechanic’s lien. Judgment was rendered enforcing the lien. The notice of lien was served by delivering the same at the usual place of abode of the owner of the property, with a servant girl in his employ. It is contended that this is not a compliance with the statute. If this view of appellants be correct, it necessarily follows that there was no evidence to support the verdict and judgment.

The statute provides (Rev. Stats., sect. 3190) that “Every person, except the original contractor, who may wish to avail himself of the benefit of this act [the act concerning mechanics’ liens] shall give ten days’ notice before the filing of the lien, as herein required, to the owner, owners, or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount, and from whom the same is due.” The Practice Act (Rev. Stats., sect. 3505) provides that notices shall be in writing, and may be served on the party or his attorney, by delivering to either of them a copy in writing, or by leaving the same at the usual place of abode of the party or his attorney, with some person over fifteen years old, or with the clerk of the party or his attorney. This provision applies to notices required by the act in which it is embodied. It has no application to notices required by the mechanics’ lien law. As ‘was said by the court in Corneli v. Partridge, we are of opinion that where notice is required, without any qualification of the term, personal notice is intended : and by personal notice we mean notice delivered directly to the person to be notified, and not notice served by delivering the original or a copy to his servants or members of his family at his house. Leaving the original or a copy at the residence with some one other than the person to be served is, perhaps, sometimes spoken of as personal service, in a loose way, where there can be no mistake about the real meaning, — as, in case of bills and notes, —to distinguish it from service through the mail. But personal service is, properly, service upon the person to/be served. And the general rule undoubtedly is, that where notice is required by statute, and the method of service is not prescribed, personal service is meant. McDermott v. Board of Police, 25 Barb. 635 ; Rathbun v. Acker, 18 Barb. 393.

It is true that the doctrine in Missouri is that the mechanics’ lien law should receive a liberal construction ; but it is a mistake to suppose that the courts are to do away, by construction, with the plain provisions of the act. The law, for obvious reasons, provides that the owner whose property is made liable for an indebtedness not arising out of any contract to which the owner of the property to be charged with the lien was a party, shall be served with notice. The statute provides for the case of the absence or non-residence of the owner, by prescribing that-the notice may be served upon the owner or his agent; but the statute neither specifies nor indicates any other service than personal service, and whenever this is the case, it is settled that personal service is meant. To the cases cited by appellants to this effect, and to those referred to above, a mass o'f citations might be added ; and we know of none to the contrary. Where the Legislature has prescribed the mode in which notice shall be given, the courts cannot substitute some other form of notice as an equivalent.

The judgment is reversed aud the cause remanded.

All the judges concur.