Kerns v. Flynn

Graves, C. J.

This petition was filed to enforce a mechanic’s lien, and the circuit court in chancery dismissed it for want of necessary parties, and the petitioners, refusing to amend, appealed to this Court.

They allege in their petition an agreement made on the 2d of October, 1882, with the defendant by Charles "Witham and Prank Demire, by which the latter agreed to build him a dwelling-house and furnish the materials for $520, and they, the petitioners, count upon a claim arising out of a sub-contract with Witham and Demire.

The objection in the court below was that the original contractors, Witham and Demire, were necessary parties.

The reply given to the petition was by demurrer and answer. It is now argued that the answer overruled the demurrer. The latter, we are told, being for want of parties, applied to the whole bill and hence could not possibly co-exist with an answer.

It is needless to inquire in regard to the accuracy of defendant’s practice in following his demurrer by the answer. The matter is devoid of practical importance here, and we are not called on to discuss the effect of our rules. The exception in question may be taken in the answer or at the hearing.’ The requirement of necessary parties cannot be *575 -annulled by putting in an answer which trips up a demurrer. Upon the main question there is no doubt.

The ease of sub-contractors involves inquiry into the • contract relations and state of accounts existing between the defendant and the original contractors, and into the ■contract relations and state of accounts existing between said original contractors and the sub-contractors. Both hinds of inquiry are indispensable. It is a fundamental implication of the remedy that an indebtedness from the defendant and in favor of the original contractors must be found and adjudicated. "Without it there can be no basis for relief to the sub-contractors. The right of lien must be ascertained, and the rights and liabilities of the different parties, so far as they pertain to the subject, must be inquired into and liquidated. The fact of • a lien and the fact of liability or indebtedness may actually exist, but they must be adjudged to exist as a preliminary to their enforcement. They can never be taken for granted. So long as a claim is unadjudged it cannot be enforced, and thex-e is no law for making such investigations and decisions 'in the absence of the parties. They must have an opportunity to be heard, and if, they do not have it they will not be bound. The doctrine is elementary and citations are unnecessary.

The decree is right and must be affirmed with costs.

The other Justices concurred.