Kitchen v. Himelfarb

Marbury, J., delivered the opinion of the Court. Ronald E. Kitchen, Ramon B. Kitchen, and Terry L. Kitchen, trading as Kitchen Brothers Equipment Co., Inc. appeal from an order entered November 14, 1968, by the Circuit Court for Prince George’s County granting a motion to dismiss their amended mechanics’ lien claim with prejudice in equity actions D-2223, D-2261, and D-2287, which had been consolidated for trial. On March 17, 1967, “Kitchen Bros. Equipment Co., ³⁷⁴ Inc., a Virginia corporation,” filed a mechanics’ lien in the Circuit Court for Prince George’s County in Mechanics’ Lien Docket 31, folio 438, setting forth a claim against the appellees Herbert A. Himelfarb, et al. Thereafter, on July 18, 1967, “Kitchen Bros.

Equipment Co., Inc.” filed a bill of complaint for foreclosure of its mechanics’ lien in which it alleged that it was a Virginia corporation with its principal place of business at 218 Telegraph Road, Alexandria, Virginia. The appellees raised preliminary objections based on the ground that the claimant lacked the capacity to bring suit since it was not registered or otherwise qualified to do business in Maryland. The Circuit Court granted “Kitchen Bros. Equipment Co., Inc.” thirty days to register or qualify, but no action was taken by the claimant.

On March 27, 1967, the Circuit Court entered an order dismissing the bill of complaint with prejudice. The mechanics’ lien filed by “Kitchen Bros. Equipment Co., Inc.” was amended on February 26, 1968, substituting Ronald E. Kitchen, Ramon B. Kitchen, and Terry L. Kitchen, t/a Kitchen Bros. Equipment Co., Inc. On or about June 17, 1968, the appellants filed answers in the three present actions which were filed by B & M Welding and Iron Works, Inc., United States Tile & Marble Company, and John L. Renshaw, Inc. to foreclose their mechanics’ liens.

The three cases were consolidated' for trial at which time oral motions were made to dismiss the claim of “Kitchen Bros. Equipment Co., Inc.” One ground for the motions was that the appellants’ answers did not make the necessary allegations to properly foreclose a mechanics’ lien. The pertinent parts of the appellants’ answers are as follows: “That in further Answer to the said Bill of Complaint, defendants state that they are the owner of a mechanics’ lien against the property described in said Complaint, said lien having been filed on the 17th day of March, 1967, among the Land Records- for Prince George’s County, ³⁷⁵ Maryland, in Liber 31, Folio 438, and that the amount of the said mechanics’ lien is $10,680.00.” On November 14, 1968, the Circuit Court entered an order dismissing the appellants’ mechanics’ lien with prejudice. On appeal, the appellants challenge the correctness of the court’s action.

In oral argument before the Circuit Court, counsel for both parties cited Atlantic