Hyperlawhypertext legal databasebeta Montello Brick Co. v. Pullman's Palace Car Co. 20 Del. 90

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Montello Brick Co. v. Pullman's Palace Car Co.

20 Del. 90 4 Penne. 90 Court Superior Court, Decision date 1902-09-15 Docket No. 50 English

Contents

Majority

p. 90
Montello Brick Company, a corporation of the State of Pennsylvania, vs. Pullman’s Palace Car Company, a corporation of the State of Illinois, owner or reputed owner.

Headnote

Mechanics’ Lien—Corporation—Affidavit of Defense ; By its Suc-
cessor—Practice—Exception.
1. Where a mechanics’ lien is filed against a corporation which has gone out of existence, the Court will permit its successor, under certain circumstances, to appear specially and file an affidavit of defense.
2. An exception will not lie to such decision.
(September 15, 1902.)
Lobe, C, J., and Spbuance and Boyce, J. J., sitting.
Walter H. Hayes for plaintiff.
Anthony Higgins for Pullman Co.
Superior Court,
September Term, 1902.
Mechanics’ Lien
(No. 50,
September Term, 1902).
Mr. Higgins:—I ask leave to appear on behalf of The Pullman Company, a corporation of the State of Illinois, and file an affidavit of defense. It is impossible for Pullman’s Palace Car Company to appear, it having gone out of existence as such. Its successor has a right, however, to defend the property of the company.
If judgment were to go against Pullman’s Palace Car Company, it would create a cloud upon the title if it did not make a lien.
p. 91
The owner of the property of course must have his day in court. This is not such a situation as calls for a special appearance.
Sprttahce, J.:—It is really an application to allow your client to intervene.
Mr. Higgins:—I think it goes a little further than a mere intervention. It is not a third party, but the actual defendant. The mechanics’ lien law gives to the party sued the right to come in and defend. We are the party, but they have sued in the wrong name. We ask to appear in said suit and file therein an affidavit of defense.
Mr. Hayes:—That must be based upon an affidavit and the reasons set out. If there has been any change in the name of the corporation it should appear by affidavit.
Lore, C. J.:—We will give you leave, Mr. Higgins, to appear specially for the purpose named and file your affidavit of defense, but the affidavit must show how it is that you are using a different name from that under which you are sued, setting out all necessary facts.

(Mr. Hayes asked to note an exception. The Court held that an exception would not lie to the above decision.)