Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in the Common Pleas for preelosure on mechanics’ lien. One of the defendants and cross-petitioners was Felix Pesa. Lebowitz, who was the owner of the premises in question, angaged Pesa to perform labor and furnish materials in the construction of a building on the premises. Pesa’s work was completed on April 7, and on April 20th he filed with the Recorder an affidavit for a mechanic’s lien.

In attempting to perfect the lien Pesa failed to include in the certificate the names of two companies from which he had purchased materials amounting to about $1,000. Pesa contended that the owner had waived the provisions of 8312 GC. as to these two companies, saying that no certificates by them need be filed. There were other lienors and a gagee in this case whose claims amounted to about $30,000. Pesa’s lien was held invalid by Common Pleas, from which ruling he perfected an appeal. Held.

While the owner may perhaps, so far as he is personally concerned, waive compliance with statutory provisions for his protection, he cannot waive compliance with the substantial requirements of the ttatute so as to effect, limit or cut off the rights of third persons, or so as to give to lien claimants a preference as against third persons, which they have not acquired by preference of liens in the prescribed manner. The lien of Pesa is invalid.