36 .38 lication in like manner and upon the same conditions as in ordinary suits in chancery. Under the present practice demurrers, pleas in abatement and pleas to the jurisdiction, are abolished and all questions heretofore raised by plea or demurrer are hereafter required to be raised by motion to dismiss or in the answer or in a notice attached to the plea, and where raised by answer or notice the questions may, upon four days notice by either party, be brought up for determination in advance of the trial upon the merits.37 Under the previous practice: a bill filed to enforce a mechanic's lien which was not sworn to, was demurrable; where the bill did not implead the necessary parties the objection thereto for that defect was permitted to be taken by answer, demurrer, plea or at the hearing;39 where the several defendants joined in a general demurrer only such grounds of demurrer were open to consideration as were available to all those joining; and on the hearing of a general demurrer oral objections, co-extensive with the demurrer filed, might be raised." In practice the statutory provisions applicable up to the time of the attaching of the lien, and the proceedings to acquire lien will be strictly construed and at least a substantial compliance with the provisions of the statute will be required; after the lien has attached however, the statutory provisions pertaining to the 36. §28 of Act 179 of 1891, C. L. 1915 (14823), How. 2nd Ed. $13793, C. L. 1897 (10737). The procedure for bringing in and adjudicating the rights of absent defendants is fixed in the Judicature Act, Act 314 of 1915, Chapter XIII, $846-49; Cummings & Beecher, 88572-575; C. L. 1915 (12449)-(12452). The procedure regarding unknown defendants is fixed by the Judicature Act, Act 314 of 1915, Chap. XII, §§20-27; Cummings & Beecher, $8494-501, C. L. 1915 (12371)-(12378). 37. Act 314 (Judicature Act) of 1915, Chapter XIV, §4; Cummings & Beecher, §579; C. L. 1915 (12456). For examples of issues that may now be raised by motion, see Form No. 25 in appendix. 38. Daschke v. Schellenberg, 125 Mich. 216, 84 N. W. 67. 39. Prather Engineering Co. v. Detroit etc., Railway, 152 Mich. 582 (585), 116 N. W. 376; Godfrey Lumber Co. v. Kline, 160 Mich. 565, 125 N. W. 682. 40. Burk V. Muskegon Machine & Foundry Co., 98 Mich. 614, 57 N. W. 804. 41. Burk v. Muskegon Machine & Foundry Co., 98 Mich. 614 (616), 57 N. W. 804. 42 43 enforcement of liens and the proceedings therefor will be given a liberal construction to secure the beneficial results, intents, purposes and remedial character of the statute, and substantial compliance will be held sufficient.* As the statute permits or requires the rights and liabilities of all parties interested in the property or controversy to be determined in a single proceeding, a bill making the surety on an indemnity bond a party is not open to objection because of the existence of an adequate remedy at law. The statute contemplates that all parties in interest shall have their respective rights adjudicated in one proceeding and affirmative relief may be obtained by a defendant against a co-defendant by an answer in the nature of a crossbill;" and in a suit to foreclose a lien the defendant owner may maintain a cross bill to recover damages sustained by claimant's failure to perform his contract but he cannot recoup his damages without praying for affirmative relief. But after acceptance of the building by the owner as complying with the contract, he cannot recoup against a materialman for defects in construction, and the owner may offset 42. §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). See $4 herein for a full discussion upon the character and rules of construction to be applied to the statute and the proceedings thereunder. 43. §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); C. H. Little Co. v. L. P. Hazen Co., 185 Mich. 316 (325), 152 N. W. 95; see: Koch v. Sumner, 145 Mich. 358 (364-5), 108 N. W. 725; Webster & Co. v. Hotel Co., 151 Wis. 1, 138 N. W. 102; Yawkey-Crowley Lumber Co. v. DeLonge, 157 Wis. 390, 147 N. W. 334. For an example of such a bill, see Form No. 28 in appendix. 47 46 44. Smalley V. Northwestern Terra-Cotta Co., 113 Mich. 141 (150), 71 N. W. 466; Grace Harbor Lumber Co. v. Ortman, 190 Mich. 429, 23 D. L. N. 73 (74), 157 N. W. 96; C. H. Little Co. v. L. P. Hazen Co., 185 Mich. 316 (317), 152 N. W. 95; Smalley v. Ashland Brown-Stone Co., 114 Mich. 104 (105-6), 72 N. W. 29. See Form No. 31 in appendix. 45. Wildey v. Gillette, 171 Mich. 153 (155), 136 N. W. 1116; Koch v. Sumner, 145 Mich. 358 (364-5), 108 N. W. 285. 46. J. W. Reedy Elevator Mfg. Co. v. Peck, 149 Mich. 657 (667), 113 N. W. 300. 47. Hannah & Lay Co. v. Hartzell, 125 Mich. 177 (181), 84 N. W. 52. Where owner waived right to completion and made payment to against the contract price his claim for damages for delay in construction.48 Defendant's answer setting up that the bill does not show performance of all conditions prerequisite to enforcement of the lien sufficiently raises the question of the failure of the contractor to furnish the owner a statement under oath of the amounts due to subcontractors, laborers and materialmen." In a chancery suit to determine the rights of lienors where all the parties are in court, the liability of the sureties will be determined in the same proceeding.50 Under chancery rule 10 d (now Circuit Court Rule No. 25) the failure of the defendant owner, in a suit to enforce a lien, to answer a material allegation of the bill, admits the truth of such allegation and obviates the necessity of proving it." If any lien claimant shall die before the commencement of a suit thereon, or the taking of proceedings to enforce the same, the suit or proceeding may be commenced and prosecuted by his executors or administrators, or if commenced in his lifetime, may be prosecuted by them, as it might have been by the deceased himself if living.52 In an instance when claimant filed two statements of lien for the same debt, the second being to supply supposed deficiencies in the first, it does not make an election between the statements necessary." 52a § 91. Practice in Proceedings to Enforce (Cont'd) Amendments. Amendments to any process, pleadings or proceedings in such actions to enforce liens, either in form or in substance, contractor, he could not in a pro- 48. Smalley V. Gearing, 121 Mich. 190 (202), 79 N. W. 1114, 80 N. W. 797; Wells v. Board of Education, 78 Mich. 260, 44 N. W. 267. 49. Wildey v. Gillett, 171 Mich. 153, 136 N. W. 1116. 50. Grace Harbor Lumber Co. v. Ortman, 190 Mich. 429, 23 D. L. N. 73 (78), 157 N. W. 96; C. H. 51. Greilick Co. v. Rogers, 144 Mich. 313 (315-6), 107 N. W. 885. 52. $24 of Act 179 of 1891, C. L. 1915 (14819), How. 2nd Ed. $13789, C. L. 1897 (10733). See Forms No. 37 and 38 in appendix. 52a. Fox v. Benham Mfg. Co., Mich., 164 N. W. 385. 54 55 shall be allowed at any time before final decree, on application of either party upon such terms and conditions as justice may require, and security for costs may be required as in other chancery cases.53 Amendments may be made to any bill or cross-bill at any time before final order, and if it shall appear that any party has had insufficient notice of any such proceeding, such further notice shall be given as the court shall think just. The plaintiff, at any time before or after the hearing on questions now raised by motion but formerly raised by plea or demurrer, is entitled to amend his pleadings, so as to meet the objections raised thereto, upon such terms as the court may deem proper. Amendments have been permitted to add new parties though the year for bringing suit has expired, and upon or after hearing;5 also to properly restate the facts set forth in the original answer, though the statute would bar a new bill."7 Where the defendant appeared generally and demurred, it was held that the bill might be amended by adding a verification after the statutory period for filing the bill had expired, and that an intervening petition might be amended to state the names of the individual members of the partnership appearing as petitioner.50 The statutory provisions regarding amendments relate to the proceedings in an action 53. §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); 27 Cyc. 344, 398-401; Rugg v. Bassett, 101 Mich. 441, 59 N. W. 645. 54. §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); Hannah & Lay Co. v. Mosser, 105 Mich. 18, (29), 62 N. W. 1120. 55. Act 314 (Judicature Act) of 1915, Chapter XIV, §4; Cummings & Beecher, §579; C. L. 1915 (12456). 56. Prather Engineering Co. v. Detroit etc., Railway, 152 Mich. 582 (585), 116 N. W. 376; Cas serly v. Wayne Circuit Judge, 124 Mich. 157 (161), 82 N. W. 841. For a case where the contractor was not made a party and an amendment was permitted after the lapse of the year to join him, see Godfrey Lumber Co. v. Kline, 160 Mich. 565 (568), 125 N. W. 682. 57. Smalley V. Northwestern Terra-Cotta Co., 113 Mich. 141 (149), 71 N. W. 466. 58. Daschke v. Schellenberg, 125 Mich. 216, 84 N. W. 67; Prather Engineering Co. v. Detroit, Flint & Saginaw Railway, 152 Mich. 582 (585), 116 N. W. 376. 59. Kleinert v. Knoop, 147 Mich. 387 (389), 110 N. W. 941. 60 to enforce, and amendments to supply jurisdictional defects in the claim of lien cannot be made after the statutory period for perfecting lien has expired. A formal amendment to a bill merely adding a new party defendant and not affecting the rights of a defendant who has answered, covering the particular defenses to the original bill, does not authorize him to file an answer setting up new matter to the amended bill.81 § 92. Practice in Proceedings to Enforce (Cont'd) Evidence. 62 64 In general the usual rules of evidence will apply in proceedings to enforce liens and the burden of proof is upon the complainant to establish compliance with the statutory requirements essential to his liens and the value of the labor and materials furnished. The statute however, expressly provides that all bills of complaint sworn to shall be evidence of the matters therein charged unless denied by answer under oath, and it has been held under this statute that notwithstanding the general rule applicable in chancery cases, a bill to foreclose a mechanics' lien which is duly sworn to, is evidence of the matters therein charged unless the answer denies them under oath.66 The bill therefore, if it contains all of the facts necessary to entitle the plaintiff to relief and is duly sworn to and not denied by an 65 60. Substitution of the correct name of the contractor when another's name had been mistakenly entered in the claim of lien is not allowed after the statutory period for perfecting lien has expired. Lacy v. Piatt Power & Heat Co., 157 Mich. 544, 122 N. W. 112; Maderia Flume Co. v. Kendall, 120 Cal. 182, 52 Pac. 304. 61. Casserly v. Wayne Circuit Judge, 124 Mich. 157 (162-163), 82 N. W. 841. 62. 27 Cyc. 407-419. The Judicature Act, Act 314 of 1915, Chap. XVII, C, L. 1915 (12489)-(12572), prescribes the method of taking evidence in chancery proceedings. 63. Roberts v. Miller, 32 Mich. 289; 27 Cyc. 402-404 (407). 64. Doetsch v. Wetiaufer, 157 Mich. 202, 121 N.. W. 746. 65. $10 of Act 179 of 1891, amended by Act 394 of 1913, C. L. 1915 (14805), How. 2nd Ed. $13775, C. L. 1897 (16719). This evidentiary character would probably also apply to intervening and cross bills. 66. Green Bay Cut Stone Co. v. Fabry, 169 Mich. 544 (548), 135 N. W. 312. |