Weinberg v. Fanning

⁵⁶⁸ Hammond, J., delivered the opinion of the Court. This appeal stems from a contest between an attaching judgment creditor and a mechanic’s lien holder for money-in the hands of the property owner, 534 Realty Co., Inc. This corporation, owner of premises on Calvert Street, Baltimore, and Katz and Novey, trustees, owners of the adjoining property, agreed that the realty company could build an elevator shaft in part on the trustees’ property and the trustees could use the shaft if their property, then a vacant lot, should be built on. The realty company hired Harold Bereson, trading as Suburban Construction Company, to build the shaft and Bereson, in turn, employed William F. Fanning to do the brick work. Construction began in early December, 1953, and the brick work was finished in April, 1954.

The appellant, Benjamin C. Weinberg, also had done work on the elevator shaft for Bereson and, not being paid, obtained a judgment against him for the sum due. On April 9, 1954, he laid an attachment in the hands of the realty company, as garnishee, for money due by it to Bereson, as a part of the contract price for the erection of the shaft. On April 10, 1954, Fanning filed a mechanic’s lien against the properties of the realty company and the trustees. The realty company refused to honor the attachment on the ground that it was entitled to retain the money in its hands due on the construction contract and apply it on the mechanic’s lien claim.

Appellant concedes, for the purpose of the case, that if the Mechanic’s lien is valid, the money held by the realty company must go to Fanning and not to him since the lien would have priority over his judgment, obtained after the commencement of the work. We assume, without deciding, that this is so. Code, 1951, Art. 63, Sec. 13; Wells v. Canton Co., 3 Md. 234, 241 ; Jean v. Wilson, 38 Md. 288, 296 ; Franklin Insurance Co. v. Coates, 14 Md. 285 ; Long Contracting Co. v. Albert, 116 Md. 111 ; Parker v. Morgan, 170 Md. 7 . Appellee filed no brief and made no argument in this Court.

Counsel for appellant says that it was agreed ⁵⁶⁹ in Judge Cullen’s chambers that Fanning would file a bill to enforce his mechanic’s lien and that Weinberg, without opposition, would intervene and dispute its validity. The bill was filed in January, 1955, and was followed a few days later by the petition to intervene. The appellee, through his attorney (said to be the one who had agreed to the intervention), formally opposed intervention, and at the hearing to determine the validity of the mechanic’s lien, Judge Nice denied the appellant that right. Thereupon, at the urging of appellant’s counsel, it was agreed at the trial table by the parties, with the approval of the chancellor, that appellant’s counsel would enter his appearance for the trustees (who were represented by other counsel) and contest the validity of the lien, along with counsel for the realty company.

This he did, and after a full hearing, Judge Nice decreed that Fanning had “a valid and subsisting lien” against the elevator shaft on the property of the realty company and the trustees, enforceable against them “as their respective interests therein appear.” This decree was entered on May 6, 1955. There was no appeal from it. The separate order of court denying intervention was likewise dated May 6, 1955, and it is from this order alone that the appellant appeals. The events of the case make it apparent that we must decide whether the appellant has not lost all right he may have had to challenge the decree and whether, without this right, his appeal from the order denying intervention, even if successful, would not be meaningless.

Entirely apart from whether the appellant could ultimately prevail on the main issue, he must have pursued either of two courses if, in his own right, he were to have the opportunity to present his point in the lower court and in this Court. When he was told that he would not be allowed to intervene, he could have either prevailed upon the lower court to stay the decree until this Court had passed upon his appeal from the order denying intervention, or he could have entered an appeal from the decree itself. Since he made no application for a stay ⁵⁷⁰ and did not appeal from the decree, it became enrolled months before the case came up for decision in this Court and there arises the question whether the matter is not moot and subject to dismissal on this ground. Montgomery County v. Met.

Dist., 200 Md. 525, 529-31 ; Bowles v. Moller, Inc., 163 Md. 670 . It is not contended that the court was without jurisdiction to pass the decree, either because the appellant was an indispensable party or otherwise. The decree has the standing of any other decree in equity. Code, 1951, Art. 63, Sec. 24.

The appellant’s counsel actively participated in the case and had full knowledge of the terms and effect of the decree— in fact, admits that it foreclosed his client’s right to the money in the hands of the realty company — and, to this extent, appellant is bound by it. Riley