[54 Del. 515] Clair J. Killoran, and David Snellenburg, II, (of Killoran & Van Brunt), Wilmington, for plaintiff.
Max S. Bell, Jr., (of Richards, Layton & Finger), Wilmington, for defendant.
Plaintiff, Lance Roofing Company, Inc. (Lance), a Georgia corporation filed an action against a building built for defendant Globe-Union, Inc., a Delaware corporation, on Globe-Union's property near Middletown, Delaware, by defendant Henry C. Beck Company, also a Delaware corporation. Beck was the contractor and Lance the subcontractor on the building in question. Lance's pleading instituting the action was titled 'Complaint and Statement of Claim for Mechanic's Lien'.
Personal service was obtained on both corporate defendants by leaving a copy of the complaint and statement with an officer of the resident agent.
Lance has conceded that it did not establish its right to a mechanic's lien, and summary judgment will be entered in favor of Globe-Union, Inc. since the only claim against it is based on the mechanic's lien action. Summary judgment will [54 Del. 516] also be entered in favor of Beck in so far as the
claim against it is based on a mechanic's lien.
Plaintiff now seeks to continue the proceeding as an in personam action against Beck for debt due. Plaintiff argues that it is permitted by statute to combine a statement of claim for a mechanic's lien and a cause of action in personam in the same proceeding.
The statute on which plaintiff relies reads in pertinent part as follows:
'(a) Every person entitled to the benefits conferred by the chapter and desiring to avail himself of the lien provided for in this chapter, shall, within the time specified in this chapter, file a statement of claim, which may also serve as a complaint when so denominated, in the office of the Prothonotary of the Superior Court in and for the county wherein such structure is situated. * * *
'(c) The complaint and/or statement of claim shall be supported by the affidavit of the plaintiff-claimant that the facts therein are true and correct.' (25 Del.C. § 2712).
The provision in 25 Del.C. § 2712 that a statement of claim for a mechanic's lien may also serve as a complaint when so denominated was added for the first time at the suggestion of those drafting the current Code adopted in 1953. Before that date such provision existed only as a footnote to Form 12 of the Civil Rules. The revision note attached to § 2712 makes the following comment:
'It has been suggested that if the contractor, who institutes the mechanic's lien proceeding, seeks only to enforce his lien against the property, then the designation of the pleading as a 'Statement of Claim' is probably proper; but that if he seeks, in addition to the enforcement of his lien, a personal judgment against the defendant, then the pleading should be designated a 'Complaint'.'
[54 Del. 517] Other provisions of the mechanic's lien statute seem to contemplate that any personal action brought will be a separate action. 25 Del.C. § 2721 and § 2725. It is to be noted that these provisions permit but do not require a separate action for personal judgment.
Defendant relies on the holdings of two recent Delaware cases in his attempt to nullify the pertinent ...