Opinion
No. 125806
Decided August 17, 1965.
Mechanics' liens — Foreclosure — Bond filed under Section 1311.11, Revised Code — Amendment of petition — To include action against surety.
A mechanic's lien holder who discovers after filing an action for foreclosure of the lien, that the landowner had filed a bond under Section 1311.11, Revised Code, will be permitted to amend his petition, after the 60-day period for commencement of an action, to include an action against the surety on such bond.
ON MOTION to dismiss amended petition.
Mr. Paul Ziegler, for plaintiff.
Mr. Jerome T. Miller, for defendant James Howe.
The question in this case is whether a mechanic's lien holder, who files an action upon the account and for foreclosure of the lien following a sixty-day notice to commence suit, may amend his second cause of action to one upon a bond after the sixty-day period, upon his discovery that a bond had been filed with the recorder under Section 1311.11, Revised Code.
It is to be noted that Section 1311.11, Revised Code, contains independent provisions. One provides for the notice to commence suit. The second provides that if notice to commence suit is filed, the owner may file a bond and obtain a release of the lien. The statute requires service of the notice to commence suit; it fails to require notice of the posting of the bond.
The final paragraph of Section 1311.11, Revised Code, provides for the release of the surety upon the failure to commence suit within sixty days or, if the claimant filed suit within such period, upon dismissal of such suit or upon satisfaction of the judgment.
In the instant case the claimant did commence suit on the lien within sixty days but did so by way of foreclosure upon the discharged lien and not upon the bond that was substituted therefor. After the sixty-day period elapsed he filed an amended petition substituting the bond in place of the real estate.
The defendant owner and the defendant bondsman take the position in their motions to dismiss that the amendment is a substantial change in the cause of action and cannot be done in this case under Section 2309.59, Revised Code, and cannot be done in any case after the sixty-day period. If this be correct, the claimant is deprived of his lien as well as his security because a bond was filed. And if this be correct, he was deprived of his lien and his security without notice and without due process, creating a troublesome constitutional problem. Section 1311.11, Revised Code, does not require notice of the filing of the bond and the cancellation of the lien. It does not require action upon the bond within any specified time. It merely requires the owner of the lien or his agent or attorney to commence suit "thereon," referring only to the lien. If he does so file action on the lien the surety is released only upon the dismissal of such suit or the satisfaction of such judgment as may be entered in favor of the claimant. The statute does not require action against the surety on the bond within the sixty-day period for the filing of the action on the lien. As indicated in Demann, Ohio Mechanic's Lien Law, 338 (1953):
"The lienor may, however, bring an action for foreclosure in form to establish the validity of the lien and subsequently maintain an action against the surety upon the bond upon recovering a judgment establishing the validity of the lien." (Emphasis added.)
In other words the lien claimant must commence suit to determine the validity of the lien within sixty days after notice to commence suit. If he is successful he may thereafter file suit upon the bond, in which event the general statute of limitations would apply. The lienor may also "bring all parties into equity, where the judgment establishing the validity and amount of the lien may be had and at the same time, based thereon, a personal judgment can be directed against the judgment debtor and the sureties." Demann, Ohio Mechanic's Lien Law, 338; Mertz v. Press, 99 App. Div. 443, affirmed, 184 N. Y. 530.
With respect to the right to amend an action to foreclose the lien after the sixty-day period has expired, to include an action against the surety on the bond the court finds that such amendment does not change the cause of action in any way. The commencement of the action to determine the validity of the lien fully complies with the demand required by Section 1311.11, Revised Code, even though the lien upon the premises was replaced by the filing of the bond.
In Lockland Lumber Co. v. Robinson, 116 Ohio St. 725, the petition set up an account for lumber furnished by the contractor. Thereafter an amended petition was filed setting up a mechanic's lien. The lower court and the Court of Appeals approved the motion to strike the averments relative to the lien. The Supreme Court reversed, saying:
"Section 11363, General Code, authorizes amendments to be made in pleadings in various respects, including inserting additional allegations material to the case. The test to be applied is whether the amendment substitutes or adds a wholly different cause of action. It is to be observed that in this instance no new claim or obligation is asserted. There is only one claim or obligation and that consists of the account for building material furnished. The amendment only asserts the perfection of a mechanic's lien covering the account, and, in addition to a personal judgment, asks for the foreclosure of such lien. Statutes providing for mechanic's liens do not create any new substantive right, but are remedial in character, providing an additional means of enforcing payment of the debt.
"It seems quite clear, therefore, that no new or different substantive right was set up in the amended petition, but that the only change made had to do with the remedy and the method of enforcing payment of the claim sued upon."
In the situation before this court on defendants' motions the cause of action is substantially the same. The claimant must still establish the validity of his lien even though the relief sought is upon the bond which was substituted for his real estate security. The case of Lockland Lumber Co. v. Robinson, 116 Ohio St. 725, goes considerably farther than is necessary here.
The motions of the respective defendants to dismiss the amended petition are overruled.
Motions overruled.