40 P.2d 365 | Kan. | 1935
The opinion of the court was delivered by
This action involves the claim for a mechanic’s lien upon an oil and gas leasehold estate. It appears the real property was owned by Alvin F. Tinsley and that the defendant, Fred U. T. Smith, was the owner of the oil and gas lease thereon, and that he had a well drilled on the property. The project became involved
Mechanics’ liens are statutory, and he who claims such a lien has the burden of bringing himself within the purview of the statutes. (Bell v. Hernandez, 139 Kan. 216, 218, 30 P. 2d 1101, and authorities there cited.) They are enforced, however, by an action in the district court (R. S. 60-1405, 60-1409), and in their enforcement courts apply equitable as well as legal principles, when the circumstances justify or require that to be done. (Bell v. Hernandez, supra, p. 223, and cases there cited.) With respect to the amendments of lien statements our statute (R. S. 60-1405) specifically provides:
*125 . . any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed.”
Our courts have applied this statute and permitted amendments to be made to lien statements in a number of cases. (Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640; Lumber Co. v. Collinson, 97 Kan. 791, 156 Pac. 724; Brown v. Walker, 100 Kan. 542, 164 Pac. 1092; 101 Kan. 293, 166 Pac. 873; Lumber Co. v. Blanch, 107 Kan. 459, 192 Pac. 742; Supply Co. v. Oil Co., 110 Kan. 468, 204 Pac. 692; Badger Lumber & Coal Co. v. Schmidt, 122 Kan. 48, 50, 251 Pac. 196; Cooke v. Luscombe, 132 Kan. 147, 294 Pac. 849.)
The effect of inaccurate description has, been treated in some cases. (Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22; Golden Belt Lbr. Co. v. McLean, 138 Kan. 351, 26 P. 2d 274.) The tendency of the courts is to allow amendments where parties have not been misled and the rights of third parties have not intervened (40 C. J. 220).
Counsel for appellees cite decisions from other jurisdictions in which it has been held that a misdescription of the real property in the lien statement was fatal. With equal propriety it might be pointed out: “The lien has been held not to be defeated by a mistake in the number of the block or section in which the property is located.” (40 C. J. 224, and cases cited.) The fact that the right to mechanics’ liens and method of their enforcement are statutory and the statutes of the various states are not uniform and the court of each state construes its own statutes, render citations from other jurisdictions of but little value. We have statutes pertaining to these matters, and with respect to every point covered by the statutes we will do best to look to our own statutes and decisions rather than those of any other state. The point should not be overlooked that the lien sought to be enforced in this case is not a lien upon real property. It is authorized by R. S. 55-207 (as amended, see same number, 1933 Supp.) et seq., and is a lien only upon the leasehold and property used in connection with the lease. The description of the real property in the lien statement is therefore unimportant except as it aids in pointing out, the leasehold. Other parts of the lien statement made it clear what leasehold was intended, and no one in this action was misled or deceived by it. In fact, the statute providing for filing this kind of a lien (R. S. 55-209) does not require a description of the real property where no lien is sought upon it.
Counsel for appellees point out that claims had been allowed in this case, exclusive of appellant’s, in the amount of about $6,200; that the property in the hands of the receiver was sold under order of the court and brought a little more than $5,600. From this it is argued that claims allowed would have to be prorated; and that it would be inequitable to allow appellant’s claim because it would reduce the amount to be received by other claimants. This would not justify refusing appellant’s claim any more than it would the refusing of any of the claims of the appellees. The trial court was too wise and too just to place its decision upon that ground. It is much more equitable to allow all claims which should be allowed, and if the fund is insufficient to pay all of them, to let each have his pro rata share. The trial court was impressed with the view that it had no authority to permit the amendment. In this the court erred, and its judgment therefore is reversed.