Vreeland v. Boyle & Bramhall

37 N.J.L. 346

• Court: Supreme Court of New Jersey
• Decided: February 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Scudder, J.

The proceedings by which mechanics and materialmen obtain a specific lien on buildings and the land upon which they stand, are statutory and special. Section 5 enacts -that every person intending to claim a lien, &c., shall file his claim in the office of the clerk of the county where such building is situate, &c.

TThen this lien claim is filed in due time and form, a lien attaches, which may he enforced by suit in the Circuit Court of the county where such building is situated. This suit was commenced by summons against the builder and owner, and the action proceeded with a declaration, pleas, judgment, and •execution in the forms designated.

It is obvious that the lien claim is not a file in the Circuit •Court, nor in any court. It is a record in the office of the clerk of the county, like the registry of a deed or mortgage. It is the foundation of the action, hut no part of the suit. 'The record in the Circuit Court begins with the issue of the summons, and continues with the filing of tho declaration, pleas, &c. The court may amend its own files and records under the authority given in sections 129 and 166 of the practice act, hut it has no power to alter or amend the records in the county clerk’s office, either by these sections, or anything contained in the mechanics’ lien law. Only proceedings in actions in courts can be altered by joining an omitted plaintiffj or striking out one improperly joined, where it shall appear that injustice will not be done by such amendment, .and the person affected by the amendment consents. If it were conceded that the court might amend the summons, .declaration and pleas in this case, under the extensive power given in section 166 of the practice act, for the purpose of •determining in the existing suit the real question in controversy between the parties, yet it cannot, without some express authority, go beyond its own jurisdiction, into the county clerk’s office, and there alter the records so as to make them •conform to the changed papers in court.

Unless the lien claim can be altered, the amendments in the proceedings in court would not avail the claimant in his. suit. There would be a variance between the claim, and the summons and pleadings, which would defeat the object sought by the amendments.

As the proceedings are under the old law, there is no propriety in determining what shall be the construction of sections 14 and 20 of the revised statute, concerning mechanics’ liens, which provide for amending the lien claim, and proceedings under the act. As the law stood when this motion was made, the Circuit Court is advised that the proposed amendments cannot be made in whole or part.