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bill made the wife the sole defendant in a case where the claim of lien was served upon her and the land belonged to her, but the building was erected under a contract with and of, the husband, the wife's land was held not to be subject to lien.21

All bills, whether original, intervening or crossbills, are required to be on oath and, when sworn to, are evidence of the matters therein charged unless denied by answer under oath.22

Amendments may be made to any bill or cross-bill at any time before final order, and if it appears that any party has had insufficient notice of such proceedings, such further notice shall be given as the court shall think just.'

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§ 87. Prerequisites to Filing of Bill, in General.

Under the statute24 the written statement or claim of lien of the party furnishing the labor or material, whether he be original contractor, subcontractor, laborer or materialman, must be duly made, verified and filed in the proper register of deeds' office; proper service of a copy thereof must, except where the claimant deals directly with the owner, be made on the owner, part owner or lessee, either in person, or on his agent in charge of the premises in case he cannot be found, within the county, or by posting on the premises, in case neither owner nor agent in charge can be found, according to the particular circumstances, and proof of such service must be made by affidavit and filed in such register's office. These requirements are, for the most part, mandatory, and should be complied with "before any

(12301), How. 2nd Ed. §11952, C. L. 1897 (435).

21. Hall v. Erkfitz, 125 Mich. 332, 84 N. W. 310.

22. §10 of Act 179 of 1891 as amended by Act 394 of 1913, C. L. 1915 (14805), How. 2nd Ed. $13775, C. L. 1897 (10719).

23. §10 of Act 179 of 1891 as

amended by Act 394 of 1913, C. L. 1915 (14805), How. 2nd Ed. $13775, C. L. 1897 (10719); 27 Cyc. 344, (398-401). In case a petition to file a supplemental bill is preferred, see Form No. 36 in Appendix.

24. §§5 and 6 of Act 179 of 1891 as amended by Act 199 of

subsequent proceedings shall be taken for the enforcement of such lien."25

§ 88. Prerequisites to Filing Bill to Enforce, by Con

tractor.

The furnishing of the statement required to be given by the contractor to the owner giving the names and number of subcontractors, materialmen and laborers, and the amount due to each under section 4 of the mechanics lien law, is an essential prerequisite to the filing of a bill by such contractor to foreclose a lien, and a bill filed by a contractor before such statement is given is ordinarily prematurely filed and the defect is fatal.26 The question of compliance

1893, C. L. 1915 (14800)-(14801) How. 2nd Ed. §§13770-13771, C. L. 1897 (10714)-(10715).

25. §6 of Act 179 of 1891 as amended by Act 199 of 1893, C. L. 1915 (14801), How. 2nd Ed. §13771, C. L. 1897 (10715). But filing proof of service with the register of deeds before commencing proceedings has been held directory only. Smalley v. Northwestern Terra-Cotta Co., 113 Mich. 141 (148), 71 N. W. 466.

26. See $39, paragraph (d); Wildey V. Gillett, 171 Mich. 153, 136 N. W. 1116; Sterner v. Haas, 108 Mich. 488, 66 N. W. 348; Wiltsie v. Harvey, 114 Mich. 131, 72 N. W. 134; Barnard v. McLeod, 114 Mich. 73, 72 N. W. 24; Adams v. Central City Granite etc. Co., 154 Mich. 448 (458), 117 N. W. 432; Dittmer v. Bath, 117 Mich. 571, 76 N. W. 89. The furnishing of the sworn statement to the owner as a prerequisite to suit is not required of manufacturers selling materials made in their own shops, as they are not contractors but materialmen. Kerr-Murray Mfg. Co. v. Kalamazoo Heat, Light & Power Co., 124 Mich. 111, 82 N. W. 801.

The requirement of sworn statement is not dispensed with by the fact that 60 days from full completion of the work have expired when bill is filed. Martin v. Warren, 109 Mich. 584, 67 N. W. 897. Nor because all material and labor have been paid for and such statement has never been requested by owner. Sterner v. Haas, 108 Mich. 488, 66 N. W. 348. Nor because the owner and the contractor are the only parties interested. Kerr-Murray Mfg. Co. V. Kalamazoo Heat, Light & Power Co., 124 Mich. 111, 82 N. W. 801. Failure to serve the sworn statement was held not fatal to the maintenance of an action in assumpsit, where it appeared that the objection was not raised on trial in Justice Court, that the statement was never demanded, and that all bills had been paid (Bollin v. Hooper, 127 Mich. 287, 86 N. W. 795); nor where the time to obtain liens has long since passed, and it appears that no subcontractors, laborers or materialmen are in position to assert liens or subject the owner to litigation. Walker v. Syms, 118 Mich. 183, 76 N. W. 320; Morton v. Eaton, 141 Mich.

with section 4 by the contractor may be raised by an adverse lienor," or by any other person whose interests are affected, and the owner may not by waiver give the contractor's lien a validity which it would not otherwise have, prejudicial to the interest of other lienors, claimants or incumbrancers.28

§ 89. Parties to Proceedings to Enforce.

In proceedings to foreclose liens 29 the plaintiff is required to make other lienors and all persons having rights in the property affected or to be affected by liens filed in the office of the register of deeds, and those having filed notice of intention to claim a lien, parties to the action.30 In cases to enforce liens instituted by subcontractors, the contractor is a material and necessary party defendant in the bill, and

444 (449). Where the contractor filed bill to foreclose lien without giving the owner the sworn statement required by section 4, the proceeding was premature and the lien terminated at expiration of the statutory period. Dittmer v. Bath, 117 Mich. 571, 76 N. W. 89. See generally as to the prerequisites to filing bill, 27 Cyc. 323-5.

27. Wiltsie V. Harvey, 114 Mich. 131, 72 N. W. 134.

28. See $74; Adams v. Central City Granite etc., Co., 154 Mich. 448 (458), 117 N. W. 932.

29. Parties to proceedings to foreclose liens; in general, see: Jones on Liens, 3rd Ed. §§15671586; Rockel on Mechanics' Liens, §§216-231; Boisot on Mechanics' Liens, §§522-533; Phillips on Mechanics' Liens, 3rd Ed. §392. 27 Cyc. 327-329, 344-361.

30. $10 of Act 179 of 1891 as amended by Act 394 of 1913, C. L. 1915 (14805), How. 2nd Ed. $13775, C. L. 1897 (10719). The receiver of the contractee is a necessary party to bill filed by a contractor to foreclose a me

chanics' lien, and unless the bill makes a case against him, it must fail as to the other defendants. Burk v. Muskegon Machine & Foundry Co., 98 Mich. 614, 57 N. W. 804; Steel Brick Siding Co. v. Muskegon Machine & Foundry Co., 98 Mich. 616, 57 N. W. 817. The objection that proper parties are not joined may be made by answer or demurrer or at the hearing. Godfrey Lumber Co. v. Kline, 160 Mich. 565 (568), 125 N. W. 682; Prather Engineering Co. v. Detroit etc Railway, 152 Mich. 582 (585), 116 N. W. 376. Formerly, objection that a receiver was made a party without proper leave of court could be taken by demurrer. Prather Engineering Co. v. Detroit etc., Railway, 152 Mich. 582 (585), 116 N. W. 376; Burk v. Muskegon Machine & Foundry Co., 98 Mich. 614, 57 N. W. 817; Steel Brick Siding Co. v. Muskegon Machine & Foundry Co., 98 Mich. 616, 57 N. W. 817. Amendments have been permitted to add new parties though year for bringing suit has expired. Prather Engineering Co. v. De

failure to include him is a ground for reversal on appeal." All persons holding like liens or having filed notice of intention to claim a lien, or other persons having rights in the property, may make themselves parties on motion to the court, and notice to complainant, and may file their intervening or cross-bills or answers claiming the benefit of cross-bills and notices of lis pendens therein.32 Parties entitled to liens under this act whose claims are not due and payable, may give notice of their intention to claim liens, and may become parties to any suit to enforce a lien, or institute such suit or proceedings themselves, and their claims are to be allowed subject to a reduction of interest, if such claims are not due at the time of the rendition of decree, but no process can issue or proceedings be had to enforce a decree for such claims until the same mature.33 Whenever the principal contractor or any subcontractor has given to the owner, or to any other person or persons having rights in the property subject to lien any bond or surety or guaranty of any kind to protect such owner or other person or persons having rights in said property against the lien provided for by law, then the plaintiff or the owner or other person or persons having rights in said property, may make the surety or sureties in such bond or guaranty, parties to

troit etc., Railway, 152 Mich. 582 (585), 116 N. W. 376; Casserly v. Wayne Circuit Judge, 124 Mich. 157 (161), 82 N. W. 841. And after hearing. Godfrey Lumber Co. v. Kline, 160 Mich. 565 (568), 125 N. W. 682.

31. Leave has been given by the Supreme Court to add the contractor as a party upon rehearing. Godfrey Lumber Co. v. Kline, 160 Mich. 565 (567), 125 N. W. 682; Kerns v. Flynn, 51 Mich. 573, 17 N. W. 62; Prather Engineering Co. v. Detroit etc. Railway, 152 Mich. 582 (585), 116 N. W. 376.

32. §10 of Act 179 of 1891, as amended by Act 394 of 1913, C.

L. 1915 (14805), How. 2nd Ed. §13775, C. L. 1897 (10719); 27 Cyc. 360-361. A petition by an intervening partnership under section 10 [C. L. 1915 (14805)] is not fatally defective because describing the intervenors in the partnership name instead of their individual names; as this may be cured by amendment. Kleinert v. Knoop, 147 Mich. 387 (389), 110 N. W. 941. See Forms No. 24 and 32 to 35 inclusive in appendix.

33. §26 of Act 179 of 1891; C. L. 1915 (14821), How. 2nd Ed. §13791, C. L. 1897 (10735). See Form No. 23 in appendix.

the action to enforce lien by original bill or by cross bills or answers claiming the benefit of a cross bill, and the court shall thereupon settle and determine the rights and liabilities of all the parties in the matter, and make such decree as may be required to determine and enforce the rights and liabilities of the various parties including such surety or sureties.3

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§ 90. Practice in Proceedings to Enforce, in General. The practice in all suits brought to enforce liens under the provisions of this act is the same as in ordinary chancery cases, and the court has the same power and jurisdiction over the subject-matter and parties to the suit as in other chancery cases except as by statute otherwise expressly provided.35 When any defendant resides out of the state, or is absent from the state or concealed therein, or cannot be found by reason of continued absence from his place of residence, the plaintiff may cause notice to be given by pub

34. §10 of Act 179 of 1891, as amended by Act 394 of 1913, C. L. 1915 (14805), How. 2nd Ed. §13775, C. L. 1897 (10719). In proceedings under the Mechanics' Lien Law all rights of the parties can and should be adjusted in one proceeding under the statute, and the owner, made a defendant to the original bill or brought in by cross bill, who in a cross bill prays relief against the surety on an indemnity bond, is entitled to have his equities adjusted in the decree by requiring the payment of damages for such liens or claims as may have been filed against the property contrary to the provisions of the bond and to recover in addition, damages for such loss or injury as resulted because of the principal's failure to complete the building pursuant to the contract. C. H Little Co. v. L. P. Hazen Co., 185 Mich. 316 (325-9), 152 N. W. 95; Grace Harbor Lumber Co. v. Ortman, 190 Mich.

429, 23 D. L. N. 73 (78), 157 N. W. 96. See Forms No. 28, 29 and 30 in appendix.

35. §27 of Act 179 of 1891 as amended by Act 143 of 1897, C. L. 1915 (14822), How. 2nd Ed. $13792, C. L. 1897 (10736). This procedure is in general now fixed by the Judicature Act, being Act 314 of the Public Acts of 1915, C. L. 1915 (12229), et seq.; Steel Brick Siding Co. v. Muskegon Machine & Foundry Co., 98 Mich. 616 (620), 57 N. W. 817. See Hagar v. Schliess, 183 Mich. 610, 149 N. W. 1058; Vaughan v. Wayne Circuit Judge, 153 Mich. 478 (480), 116 N. W. 1080; as to pleadings in general, see: 27 Cyc, 367-407; 12 Encyc. of Forms No. 13642 to No. 13819. It has been held the duty of the Supreme Court to answer a claim of error though answer is not suggested by counsel. Greilick Co. v. Rogers, 144 Mich. 313 (315), 107 Ň. W. 885.

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