Opinion
Decided November 17, 1930.
Separate findings of fact and law — Considered by reviewing court, although request irregular in trial court — Mechanic's liens — Service of copy of affidavit upon owner — Sections 8315 and 8323-3, General Code — Separate finding authorized upon service of copy in foreclosure case — Section 11470, General Code — Finding constituted conclusion of law and not fact, when — Presumption conclusions of law based upon findings of fact — Service by registered mail to owner's business address, requires proof of receipt — Inference justified that former owner received registered letter, when.
1. That request for separate findings of fact was not seasonably made held not to prevent their consideration by reviewing court, although trial court might have refused request.
2. Statute held to authorize request for separate findings of fact and conclusions of law only concerning service of copy of affidavit for mechanic's lien on owner (Section 11470, General Code).
3. Conclusion that true copy of affidavit for mechanic's lien was served on owner held conclusion of law relating to service (Section 11470, General Code).
4. Conclusion of law that true copy of affidavit for mechanic's lien was served on owner was presumably based on findings of fact, where findings of fact were unsatisfactory (Section 11470, General Code).
5. Where copy of affidavit for mechanic's lien is mailed by registered letter to business address of owner proof of receipt of letter by owner must be shown to establish proper service of affidavit (Sections 8315 and 8323-3, General Code).
6. Inference that former owner received registered letter containing copy of affidavit for mechanic's lien held justified, in absence of denial of receipt by such owner, and in absence of bill of exceptions to test findings of fact (Sections 8315 and 8323-3, General Code).
ERROR: Court of Appeals for Butler county.
Messrs. Giffen Haines and Messrs. Shank Shank, for plaintiffs in error.
Messrs. Hightower, O'Brien Porter and Messrs. Williams, Sohngen, Fitton Pierce, for defendants in error.
The action was brought to foreclose a mechanic's lien on the premises formerly owned by defendant Thomas Logsdon, now owned by plaintiffs in error Oscar and Minnie Barnes.
The legality of the lien is challenged on the ground that there was no service of a copy of the affidavit for the lien served upon the then owner, Logsdon, within thirty days after the filing of the affidavit for a lien with the county recorder.
To make the lien good, service of a copy of the affidavit for the lien on the owner must be made within thirty days, and must be made in one of the ways provided for in Sections 8315 and 8323-3, General Code.
There is no bill of exceptions filed in the case. The question sought to be raised is presented in what purport to be separate findings of fact and conclusions of law on the question of service.
It is argued in the brief of counsel for the defendants in error that this court should not consider the separate findings of fact, for the reason that the request was not made in time, as the request for the separate findings of fact and conclusions of law was not made until after the determination of the case by the court. On this proposition it is sufficient to say that the court might have refused to make the separate findings, for the reason that the request was not seasonably made, but the court granted the motion and made the separate findings, and we know of no legal obstacle to their consideration under the circumstances.
The separate findings are unsatisfactory in that what is denominated separate findings of fact is mere evidence in narrative form.
It is further argued by the defendant in error that the separate conclusions of law are merely findings of fact, in that the court as a conclusion of law finds that a true copy of the plaintiff's mechanic's lien was served on the defendant Thomas Logsdon, who was then the owner of the property, within thirty days after the filing of the lien for record with the recorder of Butler county, Ohio. This undoubtedly would be a separate finding of fact had the request for separate findings of fact and conclusions of law had reference to the issues in the case, but the request was only concerning the service.
We are of the opinion that Section 11470, General Code, providing for separate findings of fact and conclusions of law, authorizes this request. So that the conclusion of law finding that a true copy was served on the defendant Logsdon is a conclusion of law relating to the service, and is presumed to be based on the findings of fact.
It appears from the findings of fact that the plaintiff filed its affidavit for mechanic's lien on June 28, 1929, with the recorder of Butler county, Ohio; that on July 23, 1929, plaintiff addressed a letter, to which was attached a true copy of the affidavit for mechanic's lien, to Thomas Logsdon, Second and Court streets, which was the office of Thomas Logsdon, Hamilton, Ohio. Said letter stated to said Thomas Logsdon that on the 28th of June, 1929, the plaintiff filed with the recorder of Butler county, Ohio, an affidavit for a mechanic's lien. Said letter, together with the copy of the lien, was sent by registered mail, return receipt requested. The return receipt shows that the letter containing the copy of the lien was delivered July 24, 1929. Said receipt was signed "Thomas Logsdon," over the line marked "signature or name of addressee," and "Lottie Staneky," over the line marked "signature of addressee's agent." Lottie Staneky was employed in the office of Thomas Logsdon, doing general office work, and it was customary for her to sign for registered mail.
It is argued by plaintiff in error that to make the service legal the affidavit must have been mailed by registered letter, addressed to the last known place of residence of such person, and that, since the record discloses that the registered letter was mailed to the office of Thomas Logsdon, it is not such mailing as is required by Section 8323-3, General Code. However, Section 8323-3, General Code, provides, among other things: "or the same may be served by registered letter addressed to such person, firm or corporation." Therefore, if the registered letter was addressed to such person, and in this case it was addressed to Thomas Logsdon, proper service was started. The section further provides that "proof that such notice, affidavit or copy was mailed by registered letter to the last known place of residence of such person * * * shall be conclusive proof of service."
So that we have the situation here that, if the registered letter had been addressed to the place of residence, all that was necessary for plaintiff to establish service would have been to prove the mailing thereof, but since the letter was not mailed to the place of residence it would become necessary to prove the receipt of the registered letter containing the notice of the affidavit by the owner.
While, as heretofore stated, the findings of fact are not satisfactory, and it is not shown that these facts are based on all the evidence submitted on the question, we are of opinion that, in the absence of a bill of exceptions to test the findings, the court was justified in drawing the inference, in the absence of any denial by Logsdon of the receipt of the letter, that Logsdon received the registered letter containing the copy of the affidavit for the mechanic's lien. This conclusion requires an affirmance of the judgment.
Judgment affirmed.
CUSHING, P.J., and ROSS, J., concur.