
    Robinson v. Capitol Foods, Inc., et al.
    [Cite as Robinson v. Capitol Foods, Inc., 4 Ohio Misc. 107.]
    (No. 122626
    Decided September 6, 1963.)
    Foreclosure of Mechanic’s Liens: Court of Common Pleas of Montgomery County.
    ' Mr. Frank C. Short, for plaintiff.
    
      Blessrs. Froikin <& Zipperstein, for defendant The Abington Realty Company.
    
      Messrs. Boesch & Ensley, for defendants George W. Vavul,; Mary Vavul and Capitol Foods, Inc.
   McBride, J.

The legal problem was submitted to the court on the; following agreed statement of facts:

“The following stipulations of fact are submitted to the court upon agreement of counsel for plaintiff, counsel for defendant, The Abington Realty Co., and counsel for the defendants, George W. Vavul, Mary Vavul and Capitol Foods, Inc.:

‘ ‘ 1. The following liens were filed in the office of the Montgomery County, Ohio Recorder against the property described in plaintiff’s petition, of which The Abington Realty Co. is the owner:

“A. Price Brothers Company lien for $501.38 filed February 15, 1963, and recorded in volume 32 at page 521.

“B. Lorin B. Robinson lien for $3,250.50 filed March 14, 1963, and recorded in volume 32 at page 572.

“C. David’s Reliable Glass, Inc., lien for $1,587 filed April 11, 1963, and recorded in volume 32 at page 608.

“The claims of Price Brothers Company and David’s Reliable Glass, Inc., as set forth in their liens are included in the claim of the plaintiff, Lorin B. Robinson, as set forth in his lien and the plaintiff has, subsequent to the filing of the aforesaid lions, paid Price Brothers Company and David’s Reliable Glass, Inc., the amounts of their claims and has been assigned their interest.

“2. The defendant, Capitol Foods Inc. as lessee of part of the property described in plaintiff’s petition, had notices to commence suit served upon Price Brothers Company and upon the plaintiff, Lorin B. Robinson, to require them to commence suit on their liens as referred to in 1, above, which notices, together with the return of the sheriff showing service thereon and bonds approved by Honorable Carl Kessler in the exact amount of the liens, were filed with the Recorder of Montgomery County, Ohio, on the 12th day of April, 1963.

“3. Plaintiff commenced its suit in the instant case on June 11, 1963.

“4. Subsequent to the filing of plaintiff’s petition herein, the defendant, Capitol Foods, Inc., had notices to commence suit served once again on plaintiff and upon Price Brothers Company regarding their liens referred to in 1, above and Capitol Foods, Inc., also had a notice to commence suit served upon the defendant, David’s Reliable Glass, Inc.

“These notices, together with the return of the sheriff showing service thereon, were recorded on the 5th day of July, 1963, in the office of the Recorder of Montgomery County, Ohio, together with three bonds. These bonds were in exactly double the amount of each of the liens referred to in item 1. above.

“5. It is submitted to the court that the sole question for determination by the court is as follows:

“Whether bonds, otherwise valid and approved by the court pursuant to Section 1311.11, Revised Code, can be effective to release real property from mechanics’ liens if said bonds are filed and recorded subsequent to suit being instituted by the lienholders for whose protection the bonds are provided;-said suits having been instituted after one notice to commence suit and prior to a second notice to commence suit.”

Briefly stated, what is the legal effect of the filing of the proper bond under Section 1311.11, Revised Code, after a foreclosure suit has been filed, where a notice to commence suit was filed both before and after the foreclosure was filed. The issue arises here in this fashion because the amount of the bond was insufficient after the first notice.

The court has previously construed Section 1311.11, Revised Code, in Poteet v. Twelfth Ohio Builders Inc., 86 Ohio Law Abs. 474, holding that when the statute is complied with the lien is void and no cause of action exists for foreclosure.

Section 1311.11, Revised Code, contains no condition upon its operation. It does not say when the procedure of notice and bond must be taken, whether before or after a suit is filed in foreclosure.

There is no decision in Ohio on this question. One brief filed on behalf of the owner suggests the rule of law favoring transferability of property and liberality in construction of this chapter. The general contractor with whom the lien claimant has the disagreement relies upon the condition of the record when suit was filed. His position is that Section 1311.11, Revised Code, cannot be utilized after a foreclosure action has been commenced.

In this case third parties are not involved. The doctrine of Us pendens is not raised because what happened related to a change of condition as to the immediate parties. No interest was acquired by a third party. Section 2703.26, Revised Code. The policy of the law is clear as to the immediate parties: the law encourages any action that eliminates litigation or promotes voluntary settlement.

Further the court will not decide purely abstract questions. If a problem has been resolved or changed by the parties after suit has been commenced, the court will not resolve the legal question that the parties by their own action have settled or avoided.

The purpose of Section 1311.11, Revised Code (formerly Section 8319, General Code), is to provide the opportunity for an owner “to clear his title promptly from the threat of lien.” Schuholz v. Walker, 111 Ohio St. 308. The language of the section is clear and unequivocal without condition or limitation, other than expressed therein. The bond is conditioned upon the. payment of the claim, payment of any judgment or settlement of such claim, plus costs.

By operation of the statute the lien is now void even though a proper bond was not filed until after suit was commenced. The claimant is protected under the statute as to any judgment he may obtain. The purpose of the statute, as indicated by Judge Alien in the Walker case, is carried out whether his action in filing the bond after commencement of the action was one of choice or accidental. The expensive procedure of foreclosure and sale of real estate is avoided and the real estate free of claim upon the title. This appears to be the purpose of Section 1311.11, Revised Code.

The motion for summary judgment is sustained.

Motion sustained. 
      
      In a subsequent case without written opinion this court held that the notice to commence suit and the bond need not be filed at the same time because of the absence of such condition in the statute.
     