
    No. 382
    WEEKINK & SONS CO. v. JOE HORBALLY
    No. 18588.
    Pending in Ohio Supreme Court
    Motion to certify
    docketed May 19, 1924.
    2 Abs. 356.
    OA. op.
    2 Abs. 392.
    755. MECANICS’ LIEN — Controversy between defendants as to amount of lien— Suit not commenced within the 60 days.
    Attorneys — A. P. Gustafson, Cleveland, for Weekink & Sons Co.; Niman, Grossman, Buss & Holliday, for Horbally; all of Cleveland.
   This cause is pending in the Supreme Court on a motion to direct the Court of Appeals of Cuyahoga County to certify record therein. Plaintiff in error was the owner of a mechanics’ lien upon premises owned by the Hor-ballys. Horballys notified plaintiff in error to commence a suit upon said lien within sixty days thereafter, as provided in General Code 8319. Thirty days after the receipt of said notice, plaintiff in error filed its petition to foreclose upon said lien, and obtained service therein upon the original contractor and the mortgagee, the owner of the premises not being found.

The action remained pending until about eight months later, when another lien claimant, Galombos, obtained leave to become a party to the suit, filed an answer and cross-petition, and obtained service upon the Horballys. The Horballys filed an answer to the merits of the cross-petition of Galombos, but filed no answer to the petition. Later, the plaintiff in error, by an alias summons, obtained service upon the Horballys, who then answered and set up the defense that the suit had not been commenced within the sixty days from the giving of said notice.

The trial court held that because service of summons had not been had upon the owners of the fee within sixty days from the time of said notice that the lien was void, and of no effect. This was affirmed by the Court of Appeals.  