Opinion
12-04-1909
MIERKE v. SEBECKE.
Randolph Perkins, for complainant James A. Gordon, for defendant.
Bill by Charles Mierke against Henry L. Sebecke. Decree for complainant.
Randolph Perkins, for complainant James A. Gordon, for defendant.
HOWELL, V. C. On August 21, 1904, the complainant, being the owner of a tract of land in West Hoboken, made an agreement with one Rieger to erect a dwelling house thereon for the total sum of $4,100. Rieger started upon the work, but became financially embarrassed, and on October 15, 1904. abandoned the contract entirely. Up to this time the complainant had paid him $3,200. A number of lien claims were filed against the property after Rieger's default, and the complainant expended the remaining $900 in settling with the claimants. The complainant moved into the premises on October 20, 1904. He let the second floor to a tenant, who took possession thereof on November 15, 1904. At that time both the complainant and all the members of his family and the upstairs tenant declare that the plumbing work, which was constructed by the defendant, Sebecke, was entirely finished. Sebecke was given the plumbing contract by Rieger, and some time after Rieger's failure he presented his claim thereunder to the complainant. The amount was disputed, and after considerable negotiation it still remained unsettled. On April 7, 1905, Sebecke filed a mechanic's lien claim in the county clerk's office of the county of Hudson, on which summons was issued on the same day. This summons ran against Reiger as builder and the complainant as owner of the premises in question. It was delivered to the sheriff of the county of Hudson to be served, and the return made by the constable, who is now dead, is to the effect that as to the complainant it was served by leaving the same at his usual place of abode, with a member of his family above the age of 14 years. 'Such proceedings were had in the lien claim action that judgment was entered by default for want of a plea. Execution was issued on this judgment, by virtue of which the complainant's property was sold by the sheriff of the county of Hudson, who made a deed to the defendant Sebecke therefor. This happened in the year 1906. In that same year the complainant discovered that his land had been sold, and thereupon negotiations were opened with Sebecke for a reconveyance of the premises. These negotiations, continued through many months, resulted in nothing. Upwards of 2 years after the sale the complainant filed his bill to compel the defendant to reconvey the premises to him. His bill alleges that he was never served with process in the lien claim suit, and that the lien claim and the suit thereon are fraudulent, in that the defendant Sebecke states therein that he had performed labor and furnished materials in the erection and construction of the building between October 26, 1904, and December 9, 1904, whereas, the truth was, as complainant says, he had done no work upon the building since the month of October, 1904. On the hearing the complainant, his wife and his three sons, who were old enough at the time the lien claim suit was begun to remember anything of the transaction, were sworn. The complainant testified that he had never been served with the process in question, and had never heard of it. The wife and three sons testified that no copy of the summons had ever been left with them, or either of them, in any suit in favor of the defendant, Sebecke, and I am satisfied that they tell the truth. If such a document had been left at the house of the complainant, it would undoubtedly have attracted attention, for the reason that a little while prior to that time several other lien claim suits had been instituted, and the complainant knew what service of summons meant. The other lien claim papers were placed by him in the hands of his solicitor, and I have no doubt but that this one would have followed the same course if it had come to the knowledge of the complainant or any member of his family above the age of 14 years. I do not think that the defendant, Sebecke, intended to or did commit any fraud on the complainant in the service or nonservice of the lien claim process, but I do think that, through accident or mistake, the complainant, without his own fault or negligence, was prevented from receiving process and from contesting the validity of the Sebecke claim. The facts come Within a well-established line of cases in our own state and elsewhere, of which Herbert v. Herbert 49 N. J. Eq. 70, 22 Atl. 789, affirmed 49 N. J. Eq. 565, 25 Atl. 366, and Schweitzer v. Bonn, 55 N. J. Eq. 107, 31 Atl. 24, are examples.
In addition to the failure to serve the process on the complainant he urges that the judgment is void for fraud practiced by the lien claimant, in that by a false statement he attempted to extend the time within which he might file a lien claim for several months. Considerable evidence was taken on this question; but, on account of the view which I have taken of the case, it will not be necessary for me to decide it, or to do more than to merely show that a controversy exists over it. Sebecke says in his lien claim that he was engaged daily upon the work from September 14, to December 9, 1904. The complainant produces testimony which tends toshow that the plumbing work was entirely completed before October 26, 1904, and that Sebecke's appearances upon the premises after that, twice in number, were merely for the purpose of making repairs upon the work that had previously been finished. This question I will leave to be decided in another tribunal.
I am of opinion that the complainant ought to have a decree requiring the defendant to reconvey to him the premises in question, but it ought to be upon terms which will place the parties to-day in the same situation in which they would have been if the complainant had defended the lien claim action; that is to say, the complainant must pay whatever he would in justice and according to law be bound to pay to relieve the land from the Sebecke lien. Sebecke filed his lien on April 7, 1905, at which time he alleged that there was due to him the sum of $300. The complainant not only disputes the amount of his claim, but alleges that his lien claim was filed in the office of the clerk of the county of Hudson long after the expiration of four months from the date of his last work on the building, and that therefore the limitation of the statute had run against whatever claim he may then have had. I propose to allow the parties to try these questions in the common-law court. This mode of disposing of the matter contemplates that the defendant, Sebecke, shall open his common-law judgment and permit the complainant to plead thereto, and he will then bring the action on to trial at the Hudson circuit in the regular way. In the meantime the present bill of complaint will be retained Until the verdict shall have been rendered and judgment entered thereon in the common-law action. This is a privilege granted to the defendant, and he must exercise it at once. He will be held to open his judgment and notify complainant's counsel thereof within 10 days after the signing of an order on this application. If he fails or refuses to take this action, the complainant may apply to the court immediately on the expiration of that time for a final decree, directing the defendant to convey the property to the complainant without terms, or for an ascertainment of the amount due on the lien claim, according to the course and practice of this court, as shall at the time seem most consistent with the rights of both parties.