5 Colo. App. 493 | Colo. Ct. App. | 1895
delivered the opinion of the court.
Orman & Crook contracted with The Crystal River Railroad Company, in September, 1892, to construct certain parts of the road. When the work was done, there remained due a little upwards of thirty thousand dollars out of the total contract price of some two hundred and sixty-eight thousand dollars which the company had agreed to pay. The company failed to pay, and on the 4th of October, 1898, the contractors filed a lien statement with the clerk and recorder of the counties through which the road ran. On the 9th of March, 1894, they brought this suit to enforce the lien. They named the railroad company and divers other parties as defendants, alleging, as to the company, the contract and its breach, and as to the other defendants, that they had or claimed some interest as lien claimants against the railroad company. These other defendants — The Morey Mercantile Company and Jones & Seeley — likewise brought suits in the Pitkin county district court to enforce the liens which they had initiated. After these three different suits were begun, the court made an order consolidating the cases. The railroad company demurred to Orman & Crook’s complaint, on the ground that Orman & Crook had not shown they were lien claimants having the right of foreclosure. There were a good many irregularities in the proceedings below, and some which inhere in the judgment; but by stipulation the litigants have relieved us of the necessity to dispose of these matters, and the right to determine the sufficiency of the complaint is left open. It is not essential to our conclusion, nor to its apprehension, to do more than state what the allegations are with reference to two or three of the essential facts. The plaintiffs alleged that pursuant to the contract,
After the several suits were consolidated, the demurrer was heard, and the court dismissed the complaint. Orman & Crook prosecute this appeal from that judgment. Prior to the argument, the appellees moved to dismiss the appeal on the ground that the judgment was not final. We declined to dismiss it, but left the question open for discussion on the hearing, and it has been argued. This brief statement serves to indicate very clearly the only two questions which remain to be determined. Disposing of them in their inverse order, we conclude that the right of appeal inured to Orman & Crook when the court entered judgment on the demurrer. We should undoubtedly be somewhat embarrassed by the judgment entry, interpreted by the aid of the stipulation which the parties have filed, but they have agreed that the court shall disregard it when considering the motion. The naked question is thus presented whether, when a lien claimant brings his suit, and it is afterwards under the statute consolidated with other actions for the purposes of a final adjudication, and the principal defendant files a demurrer to the complaint, which is held well laid, and the action is dismissed with costs, there comes to him a right of appeal. It has many times been decided that a final judgment must precede an appeal. This whole question was considered in the case of Hagerman v. Moore, 2 Colo. App. 83. This decision, how
This leaves the main inquiry whether Orman & Crook began their .suit in apt time to enforce their lien. According to the averments of the complaint, the work was not completed until the 15th of August, nor was the money due from the railroad company until the work was done. We regard this as a controlling circumstance in the determination of the question. The whole difficulty seems to spring from the discussion, which has occurred in many cases, concerning the time at which the lien is sometimes said to accrue, and respecting the application of the doctrine of relation as between different lien claimants and creditors of the defendant. It is pretty universally conceded that under most of the statutes, if the claimant establishes his right to a lien, it will be held to relate back to the time at which he begun his work. This rule however has nothing to do with the remedy which the statutes give. A failure to observe this distinction has led to a little discrepancy in the decisions on this subject. Nearly all of them agree that several things must concur to originate a lien. With the contract we have no concern ; but we must consider the performance of the work and the failure of the other party to pay the sum due the contractor under his convention. It is manifest Orman & Crook could have had no right to a lien before they finished their work, unless there
The plaintiffs aver the work was continuously prosecuted until that time, and on that date the sum of about thirty-one thousand dollars became due. Under these circumstances, we must conclude the parties were not entitled to file a lien as against the property until after August 15th. This leaves the question whether the repeal of one lien statute and the reenactment of another containing provisions for the enforcement of lien rights in any wise affects the remedy given to the lien claimants. It is insisted that the saving clause preserves to the contractors the right to proceed under either statute. They concede, for it cannot well be disputed, that so far as concerns the remedy given for the redress of wrongs of this description, the legislature is clothed with full power. So long as what the lawmaking body may do does not deprive the claimant of the means to enforce the lien which he has partially or wholly acquired under, the preceding act, their legislation is not open to question. It is quite possible, if the work had been finished prior to the time the act of 1893 went into operation, and a right of action had accrued thereunder, a different question would have been presented. The present record does not raise it in this aspect. Regardless of the importance of the doctrine of relation as between conflicting claimants, which might become important here if Orman & Crook had succeeded in establishing their lien, it is manifest that, as between them and the railroad company, their right to the lien did not arise until the railroad company had defaulted in their payments. The plaintiffs charge'that no such default was made until the 15th of August, when the sum for which they bring this action fell due. Under •these circumstances, we conclude the lien should have been filed under the provisions of the act. of 1893, and the' suit
The statement shows the appellants failed to commence their suit in apt time, and it must therefore be adjudged that they lost the right to enforce their lien.
According to the stipulation which the parties have filed in this. court, the judgment of the court below must be reversed at the cost of Orman & Crook, and the case sent back, with.directions to the court below to permit them to prosecute their suit to judgment for whatever sum they may establish to be due from the railroad company.
jReversed.