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Self & Sellman Co. v. Savage

December 31, 1912

SELF & SELLMAN MILL AND BUILDING COMPANY, RESPONDENT, V. WILLIAM SAVAGE, ET AL., APPELLANTS.


Appeal from the Second Judicial District Court of the State of Nevada, Washoe County; W. H. A. Pike, Judge.

Boyd & Salisbury, for Appellant.

Lewers & Henderson, for Respondent.

By the Court, Norcross, J.:

This is an action to foreclose a mechanic's lien. From a judgment in favor of plaintiff and an order denying

[34 Nev. 332, Page 333]

motion for a new trial, the defendant William C. Savage has appealed. The defendant George M. Dynes was an original contractor for the erection of a certain building in the city of Reno for the defendant and appellant, William C. Savage. The plaintiff, respondent herein, was a subcontractor, and furnished certain material and labor in the erection of the building.

But one contention has been made in the briefs and oral argument, to wit, that the lien claim was not filed within the time prescribed by law.

The lien in question was filed under the provisions of section 5 of the act of March 2, 1875 (Stats. 1875, c. 64), an act to secure liens to mechanics and others, as amended March 6, 1903 (Stats. 1903, p. 51), which provides: “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 fifty days, after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or performance of any labor in a mining claim, file for record, with the county recorder of the county in which the property or some part thereof is situated, a claim containing a statement of his demand,” etc.

The court made, among others, the following findings of fact: “That on January 28, 1908, the defendant William C. Savage made and entered into a written contract with one George M. Dynes, wherein the said Dynes agreed to construct for the said William C. Savage a double flat-building on the property, above described, for the agreed price of $8,335. That, pursuant to said contract, the said George M. Dynes did erect said building on said property as the contractor and agent of said William C. Savage, and that the terms of the contract for the construction of the said building had been complied with on or about the 20th day of May, 1909, with the exception that at that time there remained to be completed on said building certain interior electric fittings and other small items of work, which were thereafter

[34 Nev. 332, Page 334]

completed by the defendant William C. Savage at a cost of one hundred and two ($102) dollars, about August 1, 1909. That the defendant William C. Savage took possession and control of said building on or about the said 20th day of May, 1909, and that the additional work was done by him later he so took possession. That on the 24th day of June, 1909, the plaintiff filed with the county recorder of Washoe County a properly verified claim of lien upon the building and land, above described, which said claim of lien was and is in the words and figures set forth in Exhibit A, attached to the complaint.”

The amendment of 1903, supra, only changed the provisions of section 5 of the act of 1875 by extending the time within which a claim of lien could be filed.

This court, in Hunter v. Truckee Lodge, 14 Nev. 24, 28, by Beatty, C. J., said: “The lien law provides (section 5) that every person claiming under it, except the original contractor, shall file a statement of his claim, ‘within thirty days after the completion of the building.' In this case, all the notices of liens were filed before the completion of the building; and appellant claims that this was not a sufficient compliance with the law. We think it was. The law is to be liberally construed, and a substantial compliance with its provisions is all that is required. (Skyrme v. Occidental M. Co., 8 Nev. 239.) The meaning of the statute, and all that it requires, is that the lien claimant shall file his notice before the expiration of thirty days after the completion of the building, not that he must decide at his peril exactly when it is finished (a thing that it would often be impossible to do), and file his claim within ensuing thirty days. There could have been no possible object in such a requirement; while the necessity of fixing a term within which liens of this ...


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