*120The opinion of the court was delivered by
William J. Brennan, Jr., J.The plaintiff in each ease appeals from a judgment for the landowners, defendants DeStefano, in an action to enforce a materialman’s lien for materials furnished _for a house constructed for the De-Stefanos. by the defendant Parro, a builder. The appeals were taken to the Appellate Division and are here upon certification of our own motion.
The judgment in the Nitti action was entered by the trial judge at the close of the proofs upon the DeStefanos’ motion for an involuntary dismissal and the discharge of the lien. The judgment in the action by Columbia Lumber and Mill-work Co., Inc. (referred to hereafter as Columbia), was entered upon a jury verdict of no cause for action.
Both appellants argue that the trial court committed error in ruling that the lien must be discharged if summons did not issue within five days after the filing of the complaint. The trial court based the ruling upon an amendment by L. 1949, c. 111, p, 445, to B. S. 2:60-137 (since superseded by N. J. 8. 2A:44-99), which provided “* * * if such claimant shall fail to issue the summons within five days after the filing of the complaint * * * or such further time as the court may by order direct, the lien shall be discharged by an order signed by a judge of the Superior Court or a judge of the County Court.”
In the Uitti action the motion for dismissal was granted because the summons issued, at the earliest, nine days after the filing of the amended complaint. In the Columbia.action the trial judge viewed the proofs as presenting a jury question whether summons issued the day before or on the day of, but following, the filing of the complaint, and submitted the issue under an instruction, “If it was issued before the complaint was filed the verdict must be for no cause for action.”
We do not see that any question of the issuance of the summons prior to the filing of the complaint was raised by the proofs in the Columbia action, and have therefore concluded that it was error to submit that question to the jury. *121The claimant’s attorney mailed the summons, dated October 16, 1951, with the complaint to the Superior Court Clerk at Trenton. The attorney seems to have overlooked the change in practice by which a civil action is now initiated by the filing of the complaint and not by the issuance of the summons. Rule 3:3-1; R. S. 2:60-137 as amended, supra. Both the summons and the complaint were stamped by the clerk as filed October 17. However, the attorney’s transmitting letter expressly requested the clerk to “file, seal and return copy to me so that service can be made upon the defendants.” Plainly, the attorney’s action in mailing the summons to the clerk was not the issuance of the summons nor .intended so to be. The letter made it clear that the issuance of the summons was not contemplated until after its return to the attorney. Thus the essential of an “absolute, positive, and unequivocal” intent to issue the summons was absent. Williams v. Evenstein, 2 N. J. 60 (1949).
The parties tried the case on the theory that if the mailing of the summons to the clerk was not the issuance of the summons, it was issued on the day of, but following, the formal filing of the complaint in the clerk’s office. The attorney testified, “I issued the summons on the 17th of October with the intent of delivering the same to the Sheriff for service.” Actually the summons was not delivered to the sheriff until January 21, 1952. This was because the attorney acceded to the request made personally by the De-Stefanos on October 17 to delay its delivery to the sheriff to afford them an opportunity to settle the several claims against their property, and considerable effort to effect a settlement, ultimately unsuccessful, was made in the intervening period. That conduct of the DeStefanos may estop them to raise the question whether the summons issued on October 17; but, although we are deciding the issue upon the premise which the parties and the trial court proceeded upon at the trial, we are not to be understood as holding that the summons did issue on that date. The claimant’s attorney abandoned his purpose to forward the summons to the-sheriff on October 17 and, whatever the reason therefor, *122the summons plainly did not issue on that day within the test of what constitutes the issuance of a summons laid down by Williams v. Evenstein, supra. The case, however, must be returned for a new trial because we cannot say whether the verdict of the jury turned on that issue or on another issue submitted for its determination, namely, whether the action was commenced within four months from the date the last materials mentioned in the claim were furnished by Columbia. There is a clear conflict in the testimony in that regard, and Columbia’s contention on this appeal that there is not has no merit.
The PTitti action does require our decision whether the failure to issue the summons within five days after the filing of the complaint makes it mandatory that the trial court discharge the claimant’s lien. PTitti urges here, as he did upon the trial, that whether an action should be dismissed by the court for failure to issue the summons within time is purely a matter of practice and procedure governing the disposition of causes and thus not constitutionally within legislative cognizance but within the exclusive rule-making power of the Supreme Court under Article VI, Section II, paragraph 3 of the 1947 Constitution, as that provision was construed in Winberry v. Salisbury, 5 N. J. 240 (1950), and see George Siegler Co. v. Norton, 8 N. J. 374 (1952), and that, under Buies 3:4-l and 3:41-2, the trial court was empowered “in its discretion” to determine whether an order of dismissal should be made in light of the particular circumstances accounting for the failure to issue summons within time. The DeStefanos respond that the mechanics’ and materialmen’s lien was unknown to the common law and exists only by reason of statute, and that the Legislature intended that a claimant was to be allowed the lien to satisfy the debt out of the owner’s property only upon literal compliance by the claimant with the statutory provisions as to both the creation and the enforcement of the lien, so that the provision in question is “substantive in nature” and not merely procedural within the sense of the constitutional *123grant of power to this court to regulate practice and procedure by rule.
We see no merit in the DeStefanos’ argument. We think it is very clear that this provision, alike with a number of others in the statute relating to the procedure to be followed in prosecuting the action for enforcement of the lien, was never contemplated by the Legislature to be of the essence of the lien. Formerly the statute prescribed the form of the summons, B. S. 2:60-141; the manner of its service, B. S. 2:60-139; the form and contents of the complaint, B. 8. 2:60 — 142; the plaintiff’s burden of proof if the owner or mortgagee answered that the building was not liable to the debt, B. 8. 2:60-144; that “The practice, proceedings and pleadings in an action to enforce a lien claim shall be conducted, and the judgment entered, as in actions in the circuit court to recover moneys due on contract,” B. 8. 2:60-143; and that “All defects and errors in an action or proceeding under this article may be amended by the court or judge thereof * * *, so that the merits of the controversy between the parties may be determined, * * B. 8. 2:60-146. Such matters are not different from but are ordinary procedural aspects of the usual civil action. The former Court of Errors and Appeals emphasized that there is nothing “occult or mj'sterious” about the action to enforce the lien, Vreeland Bldg. Co. v. Knickerbocker Sugar Refining Co., 75 N. J. L. 551, 554 (1907). And this court has held that such provisions should be “liberally construed to effectuate the remedial statutory policy,” distinguishing in this regard the provisions requisite to constitute the lien— the filing with the proper county clerk of the notice of intention in statutory mode, B. 8. 2:60-112 and 113, and, within four months after the date of the last materials furnished, the filing with such clerk of the lien claim, B. 8. 2 :60-129 and 130, and the commencement of the action to enforce the claim, B. 8. 2:60-136 — which provisions are “strictly construed.” Friedman v. Stein; 4 N. J. 34 (1950). If there was ever reason to doubt the legislative intent, the Legislature has now fully resolved that doubt. In the revision of *124Title 2 of the Revised Statutes dealing with the Administration of Civil and Criminal Justice, L. 1951, c. 344, a project undertaken expressly to delete the procedural matter therein, N. J. S. 2A :44-66 et seq., superseding the former Mechanics’ Lien Act, carries forward none of the provisions aforementioned. Obviously they were deleted because the Legislature never • contemplated that they also should be viewed as conditioning the claimant’s right to the benefit of the lien, but rather contemplated that they should be regarded as being merely procedural. Hence their subject matter is constitutionally governable by rules promulgated by this court within its rule-making responsibility.
And this conclusion as related to the provision under consideration is strongly buttressed by its history. The provision was introduced into R. S. 2:60-137 by L. 1949, c. Ill, p. 445, mentioned above. The Mechanics’ Lien Act had provided for the enforcement of the lien by an “action” commenced by “summons,” R. S. 2:60-135. The Rules of Civil Procedure effective September 15, 1948 provided for commencement of a “civil action” “by filing a complaint with the court,” Rule 3 :3 — 1, and for dismissal by the court “in its discretion” for failure to issue summons within five days thereafter, Rule 3:41-2, since amended effective January 1, 1953; see also Rule 3 :4-l, as amended. The 1949 statute brought the Mechanics’ Lien Act into conformity with the rules by providing for the enforcement of the lien by “a civil action in the nature of an action' at law” commenced “by filing the complaint,” and by adding the clause at issue to cover the contingency of the failure to issue the summons within five days. There could have been no reason for the change except to eliminate a conflict with the rules on a subject which is manifestly procedural in its very nature. The fact that the five-day interval provided for issuance of the summons was identical with that under the rule points plainly to such purpose. True, dismissal for failure to issue the summons within the interval was and is explicitly made a matter of judicial discretion under Rule 3:41-2, but the statutory authority of the judge to enlarge the five-day *125period for “such further time as the court may by order direct” certainly has substantially the same import.
Thus, even though the- provision continues in N. J. S. 2A :4A-99, we are convinced that neither in context nor legislative design was literal compliance with its terms a new requisite engrafted upon and conditioning the claimant’s right to the full benefit of the lien. It is merely a procedural incident of the prosecution of the action. And being wholly procedural the provision must give way to the pertinent rules (by amendments of the rules effective January 1, 1953, the time allowed for issuance of the summons is now ten days), if in any degree in conflict therewith. Winberry v. Salisbury, supra; George Siegler Co. v. Norton, supra.
There is left for consideration the question whether the Hitti cause should be remanded for further proceedings or be finally decided here. We think the latter course is appropriate in the circumstances of the case. The De-Stefanos rested their defense without offering any proofs, and the implication is therefore clear that they have no defense on the merits and rely solely on their argument that the lien must be discharged because the summons failed to issue within five days after the filing of the complaint. We are satisfied that it would be a mistaken exercise of discretion for the trial judge to dismiss the action and discharge the lien on the facts presented, and there is therefore no reason to return the case for the trial court’s further consideration. It is not denied that the delay in the issuance of the summons was primarily the consequence of the delay in the Superior Court Clerk’s office in the issuance of the certificate of the commencement of the action which the claimant was required by R. S. 2:60-140 (now superseded by N. J. S. 2A :44-101, which is comparable in that respect) to obtain and present to the county clerk, who in turn must indorse on the lien claim the notation that an action thereon has been commenced. The complaint was filed Decmber 10, 1951, and one of the staff of the Superior Court Clerk required its amendment to allege the particulars of the filing of the lien claim in the office of the county clerk. The *126amended complaint was filed December 26. The certificate of commencement of the action was mailed to the claimant’s attorney and received by him on January 2, 1952. The attorney prepared the summons on January 4 and delivered it to the sheriff for service on January 10. We do not consider that this sequence of events establishes such untoward or groundless delay as to justify the court in depriving Nitti of the lien not challenged on the merits by the DeStefanos.
The judgment in the Nitti action is reversed with direction to the Superior Court, Law Division, to enter a judgment in favor of plaintiff specially against the lands of the defendants DeStefanos in the amount claimed.
The judgment in the Columbia action is reversed with direction for a new trial consistent with this opinion.