Plummer v. Eckenrode

Brent, J., delivered the opinion of the Court. From the view we take of this case the judgment must he reversed. While the record is unsatisfactory in showing very clearly from what action of the Circuit Court this appeal is taken, it was conceded in the argument that the appeal is taken, at least, from the refusal of the Court to grant the motion to quash. We shall so consider it.

The counsel for the appellee have argued that the motion applied solely to the writ of scire facias, and did not embrace the sheriff’s return made upon it. ’ The record shows that in this they were mistaken. The motion of the 5th of March, 1877, does refer exclusively to the scire facias, hut on the 3rd of April, following, we find another motion to quash, when the defendant by his attorney “moves the Court to quash the writ of scire facias, which issued in this cause against him, and the return of the sheriff thereon.” Six reasons are assigned, and of these the three first are directed to. the sufficiency of the sheriff’s return, and the others to alleged defects in the writ. This appeal must, therefore, he considered as presenting for review in this Court, not only the sufficiency of the writ, hut also the sufficiency of the return of the sheriff. ²³² While the 41st section of the Mechanics’ Lien Law requires a liberal construction to be given to its provisions, it is nevertheless necessary that it should be substantially complied with, before a party, seeking to enforce an alleged mechanic’s lien, can do so successfully either in a Court of law or equity. Hess, Reid and others vs. Poultney & Brown, 10 Md., 257 .

The claim filed in this case is against two buildings owned by the appellant, — the one a tenant house, and the other a barn, — and the amount claimed to be due on each building is separately designated, as required by section 21, of the Article. The proceedings taken by the appellee to enforce his lien is by scire facias. Upon the writ of scire facias, which was issued, the sheriff makes return of scire feci. To this return as well as to the form of the writ, the objections filed in the Circuit Court are directed.

Following the order of the objections, the first question presented is the sufficiency of the sheriff’s return. Section 28, (Art. 61,) requires that “ the said writ shall be served in the same manner as other writs of scire facias upon the defendant therein named,- if he can be found within the city or county, and a copy thereof shall be left with some person residing in the building; but if not occupied as a residence, the sheriff shall affix a copy thereof upon the door or other front part of such building,” The terms of this section are mandatory, and point out with precision what notice the sheriff shall give in proceeding to execute the writ. It is not sufficient for him to discharge one of the required duties, but he must discharge both. He is not only to serve the writ in the same manner as other writs of scire facias upon the defendant, hut he is commanded, in addition to such service, to leave a copy with the person occupying the building, or in the event of the building being unoccupied, to affix a copy to the door or other front part of such building.

An omission to do so ²³³ is fatal, and a compliance on the part of the sheriff with one only of these requirements of the law leaves the case in no better attitude than it would be, if the sheriff had failed to make