55 Kan. 195 | Kan. | 1895
The opinion of the court was delivered by
This was an action to determine and enforce the liens of several lienholders upon the sugar factory built by the Douglass Sugar Company, and is a branch of a litigation which was before this court in Manufacturing Co. v. Sugar Co., 54 Kas. 455 ; same case, 38 Pac. Rep. 556. In this proceeding, the controversy is between the Keystone Iron Works Company and the Merchants’ Bank of El Dorado, Kas. When the trial was had, the court, among other facts, found that in May, 1888, the Keystone Iron Works Company contracted with the sugar company to furnish material and machinery for the sugar factory, and in pursuance of that contract there was furnished for the construction of the sugar factory material and machinery of the value of $3,056.81. The construction of the sugar factory was begun in May, 1888, and the first of the material and machinery furnished by the Keystone Iron Works Company was furnished about June 19, 1888. Before' that time, and on the 9th day of June, 1888, the sugar company executed a mortgage upon the factory and premises of the company to N. F. Frazier, to secure the sum of $10,000, with interest at 12 per cent, per annum after maturity, and two days later the mortgage was duly recorded in the office of the register of deeds. The mortgage so executed and recorded was duly assigned to the Merchants’ Bank of El Dorado, Kas. The factory was completed about October 15, 1888, and in due time thereafter the Keystone Iron Works Company
"The lien of parties who furnished machinery required and contemplated by the original plan of a structure erected for the manufacture of sugar, during the course of its erection, which went into and became a part of the sugar-works as originally designed, and which were fixed to and became a part of the realty, dates from the commencement of the building, and is superior to that of a mortgagee •whose mortgage was executed after the commencement of the building, but before the machinery was actually furnished.”
Findings of fact and conclusions of law were announced by the court on January 15, 1890, and the Keystone Iron Works Company applied for a new trial, and in support of the same oral and written evidence was produced. On February 1, 1890, the court granted the application for a new trial as to the time when the materials, fixtures and machinery were furnished by the Keystone Iron Works Company to the Douglass Sugar Company, and the judgment previously eirtered adjusting the Keystone Iron Works Company’s lien and fixing its priority was vacated and set aside. Afterward, a new trial was had upon this issue, when the court found, as it did in the first
We cannot consider or review the ruling of the court made in 1890, but the plaintiff in error does not ask a review of that ruling. The decision which was then made was in fact vacated upon application of the plaintiff in error, and, the ruling being in its favor, no review was desired. The question in dispute was the precedence of the several liens, and, as between the parties to this proceeding, the controversy was whether the mortgage lien was paramount to the mechanic’s lien. The court first decided that the mortgage lien had priority over the.mechanic’s lien, but; on application of the plaintiff in error, that determination was vacated and set aside, and the question of priority was retried. The final decision was made on September 6,1890,and at that time it was held “That the findings of fact and conclusions of law by the court reached in the original hearing of this case last January were correct, and should stand.” It is contended that the determination by the court that the findings “ should stand ” indicates that the first order was not in fact set aside, but was only held in abeyance until the question was retired, and that the decision in September simply removed the suspension and left the
As the point of difference concerning the priority of liens has been determined in the case of Manufacturing Co. v. Sugar Co., 54 Kas. 455, and as no reason is seen for disturbing the rule then made, it follows that the ruling of the district court cannot be sustained. The judgment of the district court will, therefore, be reversed so far as it affects the priority of liens between the Keystone Iron Works Company and the Merchants’ Bank of El Dorado, and the cause will be remanded, with- instructions to enter judgment awarding the plaintiff in error precedence over the mortgage lien of the bank, and that the claim and judgment of the plaintiff in error shall be paid out of the proceeds of the sale of the property in accordance with that determination.