1 Kan. App. 61 | Kan. Ct. App. | 1895
The opinion of the court was delivered by
The plaintiffs in error, W. F. Groesbeck and E. A. Belisle, under a sub-contract with the contractors, furnished material for the erection of a building of which defendants, E. S. Barger et al., were owners. The last of the materials was’furnished January 15, 1889. On the 20th day of May, 1889, a sworn statement of the lien claim was made and filed
The only question in this case is as to the application of the several lien laws of this state to the claimed lien of plaintiffs. It is claimed that they, as sub-contractors furnishing materials, had a vested right to a lien under the act of March 2, 1872, and that that act governed as to the time within which the statement of the claim should be filed. On the other hand, it is contended that the act of February 26, 1889, which took effect March 1, 1889, repealed the former act with reference to the several steps necessary to be taken to preserve the lien, and must be complied with. That the sub-contractors’ right to a lien be-' came a vested right as soon as the materials had been furnished, which it was not in the power of the legislature to destroy, must be conceded as no longer open to argument in this state. (Weaver v. Sells, 10 Kas. 609.) The right to the lien must, therefore, be determined in this case by the act of 1872, which was the law in force at the time the materials were furnished. The steps required to be taken, by filing a verified statement within 60 days after the completion of the building and serving a copy on the owners, were not required in order to secure the right to a lien, but were made necessary merely in order to preserve a right already acquired by the furnishing of materials. They were but proceedings provided for preserving
■ We think the law is well settled that the right to a mechanic’s lien must be determined by the law in force at the time the right becomes vested, but the lien must be established, or preserved and enforced, by the law in force at the time the necessary proceedings are had for that purpose. (Moore v. Maysert, 49 N. Y. 332 ; Phillips v. Mason, 7 Heisk. 61; Tell v. Woodruff, 45 Minn. 10 ; Hill v. Lovell, 47 id. 293 ; Goodbub v. Estate of Hornung, 127 Ind. 181; Templeton v. Horn, 82 Ill. 491; Barton v. Steinmitz, 37 Ill. App. 141;
Judged by these'rules, the district court properly held that the statement filed May 29, 134 days after the date when the last material was furnished, was not filed in time, and that plaintiffs had not brought themselves within the requirements. of the statute. The plaintiff must, of course, be given a reasonable time after the new act took effect within which' to comply with its provisions ; but such reasonable time can in no case be for a longer time after the act took effect than that given by the statute after the furnishing of materials. The provisions referred to in the act of 1872, being expressly repealed in 1889, were not continued in force, as to plaintiffs in error, by virtue of ¶ 6687, General Statutes of 1889, which provides that the repeal of a statute does not affect any right which accrued, or proceeding commenced, under the statute repealed. The proceedings which are questioned in this case had not been commenced when the act of 1889 took effect; hence, not affected by it. Even if the act of 1872 should be held to be in force as to persons furnishing materials prior to its repeal and the taking effect of the subsequent act, as claimed by counsel for plaintiff in error, the result in this case would be the same, because the requirements of neither act have been complied with. This being a right specially conferred by statute, anyone claiming the benefit of the statute must bring himself fully within its provisions. The owners were not served with a copy of the statement, as required by the law of 1872. Instead, a simple notice as required by the law of 1889 was given. Certainly parts of such statutes pertaining to remedies cannot apply at the same time in