266 P. 106 | Kan. | 1928
The opinion of the court was delivered by
This was an action to enforce a materialman’s lien on the Sedgwick county courthouse. Plaintiff prevailed, and the board of county commissioners appeals.
The facts were these: The county board let a contract to one Randel to remodel and repair the five floors of the courthouse, but neglected to take a bond to protect the county against liens as provided by law. Plaintiff furnished millwork to Randel, which was used to repair the floors, of the value of $3,242.75, and filed its lien
Plaintiff’s petition concluded with a prayer for a personal judgment against Randel, and for the enforcement of its lien against the courthouse, and for other relief.
The county board filed a general demurrer to plaintiff’s petition. This was overruled, and the cause is brought here for review.
■ It has been repeatedly held that the mechanic and materialman’s lien statute applies to public property such as a schoolhouse, fire station, or courthouse. (School District v. Conrad, 17 Kan. 522; Sullivan v. School District, 39 Kan. 347, 350, 18 Pac. 287, and citations; City of Topeka v. Thomas, 1 Kan. App. 113, 40 Pac. 930; Comm’rs of Jewell Co. v. Manufacturing Co., 52 Kan. 253, 34 Pac. 741.)
Of course the sale of a county courthouse in foreclosure of a materialman’s lien is only to be regarded in a Pickwickian sense. The sheriff will hardly go the length of turning the county officers into the street and putting the purchaser in possession. At the proper time, unless the plaintiff’s judgment is otherwise satisfied, mandamus will lie to compel payment or the imposition of a levy to raise the wherewithal to pay it. (School District No. 49 v. School District No. 70, 20 Kan. 76; Stevens v. Miller, 3 Kan. App. 192, 43 Pac. 439; Super v. Modell Township, 92 Kan. 979; id., 94 Kan. 402, 146 Pac. 993; City of Frankfort v. Warders, 119 Kan. 652, 240 Pac. 589; 38 C. J. 768-770, 776-779; 14 L. R. A. 773 et seq.) In one important respect the lien statute is as helpful where the construction, labor or repair pertains to public property as where it relates to private property — that of recording with precision and clarity the data prescribed by the lien statement (R. S. 60-1402, 60-1403), so that public officers who have entered into contracts for construction or repair of public buildings may be timely forewarned and reminded not to pay the full contract price to the contractor until the just demands of the laborers and materialmen have been satisfied. (Wilson v. School District, 17 Kan. 104.) It is a relatively small matter for the county board to exact a bond to protect the county against such liens; it is its duty to exact such a bond (R. S. 60-1413); and the board cannot plead its own delinquency to defeat the just claims of those whose rights are protected by the statute.
It is suggested that the amendments -to this lien law have discounted the value of our early decisions, and that they are out of
“The decision works no injustice. It protects the laborer or materialman who has contributed his service or material to a public building better than the contrary decisions of other states.” (p. 257.)
Nor has the statute been materially changed since the Jewell county courthouse case was decided in 1893, at which time this court carefully reconsidered the question, including the possible effect of the enactment of chapter 168 of the Laws of 1889, and particularly section 13 of that act, which provided that a bond might be given for the use of all persons in whose favor a lien for labor or material might accrue, and where given, approved and filed, “no lien shall attach and liens filed prior thereto shall be discharged.” The court held that the bond was supplemental to and not a substitute for the statutory lien. In Griffith v. Stucker, 91 Kan. 47, 136 Pac. 937, it was said:
“The purpose of the statute was to protect the contributions of laborers and materialmen to public works. Where mechanics’ liens are allowed, as upon public buildings, the statute furnishes additional security. (Comm’rs of Jewell Co. v. Manufacturing Co., 52 Kan. 253, 34 Pac. 741.) Where mechanics’ liens are not possible, as upon street improvements, the purpose was to secure laborers and materialmen against loss by a quasi mechanic’s lien, the lien being upon the bond instead of upon the property; and the language of a bond tendered in compliance with the statute will be construed as designed to accomplish the end which the legislature had in view.” (p. 50. See, also, Traction Co. v. Brick Co., 112 Kan. 774, 775, 213 Pac. 169.)
The judgment is affirmed.
