151 Ky. 129 | Ky. Ct. App. | 1912
Opinion of the Court bt
Affirming.
The record shows that there were nine subcontractors and materialmen who asserted claims for liens, amounting in the aggregate to about $2,070. The owners claim that the contract price of $4,730 should be abated by the sum of $1,643. This amount was based upon the following items:
Damage suffered because the foundation was built some 12 to 16 inches higher than it should have been ...................... $1,000.00
Cost of four additional steps, necessitated by the higher foundation ............... 10.00
Two copings or gratings left out .......... 20.00
Extra dirt left out ....................... 14.70
Cementing cellar, erroneously left out of contract .............................. 98.30
Defective mill work, stair work, flooring, glass, plumbing, roofing and electric work dapaaged ............................. 500.00
It will thus be seen that, if appellants’ contention be sustained in toto, the contractor, if he has been paid nothing, would be entitled to a lien upon the building for $3,087, this being the contract price less the amount which appellants claim is due them because of the damage in the construction of the building. The subcontractors and materialmen have a lien upon the building to the extent of the amount for which the contractor was entitled to a lien. Counsel for appellants seems to recognize this principle as correct, but insists that, inasmuch as the contractor was, during the progress of the work, paid something more than $3,000, his lien or
The lien of a subcontractor or a materialman is a creature of the statute. In the absence of a statute, they have no lien, unless there existed some contractual relation between them and the owner of the building. An examination of the statute creating the lien discloses the fact that provision is made, not only for establishing and perfecting the lien, but also for the method to be pursued in enforcing it. It is an equitable proceeding, and it is apparent that the Legislature did not intend that the method of procedure, in cases arising under this act, should be the same as those prevailing in ordinary equitable actions. If so, there was no necessity for providing, in detail in the act, for the preparation of the case for trial; but it would have been sufficient to say, after providing for the creation of the lien, that, in the enforcement thereof, the procedure should be the same as in other equitable actions. The very fact that the Legislature provided for a different course is the best evidence that it was not contemplated
Appellants’ counsel being of opinion that he was entitled to a jury trial, did not at first appear before the master at his sittings and introduced no evidence contesting the validity of the claims presented, nor was any exception filed to the report of the commissioner. The chancellor, upon perceiving the error into which counsel for appellants had fallen and with the evident purpose of doing full justice between the parties, set aside the confirmation of the report on claims and again referred the case to the master, giving each side a limited time in which to present their evidence. This order was entered over the objection of the claimants. In obedience to this order, the commissioner heard such evidence as was offered and again reported his finding. There is no complaint that any evidence, which appellants had bearing upon the question, was not presented to the commissioner, or that they were not given ample opportunity to present their defense to these claims when the evidence was being taken by the commissioner. Their sole complaint is that they were entitled to have the value of this evidence weighed and determined by a jury, rather than by the chancellor. There is no merit in this contention. The Constitution does not guarantee to a litigant the right to a trial by jury of issues of fact arising in every equity case, but in those cases to which, at common law, he was entitled to a jury trial. This being an equitable action and properly commenced as such, the right of appellants to have the issues of fact, raised in the pleadings, transferred to the common law docket for trial, is controlled by section 12 of the Code of Practice, which provides:
“In an equitable action, properly commenced as such, either party may, by motion, have the ease transferred to the ordinary docket for the trial of any issue concerning which he is entitled to a jury trial.” * * *
This raises the question, are the issues which appellants sought to have tried by a jury such as, under the facts of this case, they were entitled to have submitted
“If the equitable right depends upon the decision of legal issues, concerning which the party is entitled to a jury trial, the case, on motion, should be transferred as a matter of right to the common law docket to be tried by jury. The court has no right to refuse such transfer, unless the case be purely equitable, in which case it has discretionary power as to the transfer, and may, at its discretion, obtain the advisory aid of a jury in coming to a correct conclusion upon any question of fact involved In the issues to be tried. The Constitution of this State guarantees the right of jury trial. This means a trial according to the course of the common law, and secures the right only in cases where a jury trial was customarily used at common law; but in cases of purely equitable cognizance a trial by jury is not a matter of right, but it is addressed to the discretion of the chancellor.”
In the later case of Comingor v. Louisville Trust Co., 128 Ky., 697, this court disposed of a similar question in the following language:
“The Constitution secures to a litigant the right of trial by jury only in cases where such right existed at common law.”
This case being purely equitable and the proceeding being unknown to the common law, the chancellor did not err in declining to entertain the motion to transfer the action to the common law docket for a trial of the issues of fact by a jury. But, if we were less certain of our position upon this point, we would not direct a reversal of the case if, upon examination, we find the findings and judgment of the chancellor to be correct; for, under section 756 of the Code of Practice, no judgment should be reversed for error, occurring during the progress of the trial, that did not affect the substantial rights of the complaining litigant.
This brings us to the second ground relied upon for reversal, to-wit: That the judgment of the chancellor is not supported by the evidence. Appellants, in the preparation of the case for trial and in the introduction of evidence, based their defense upon the idea that these claimants were not entitled to recover, because the con
We have examined the record with care and find that, by a decided preponderance, the evidence supports the finding of the chancellor in every particular as to the claim of each of the appellees. This judgment is, therefore, affirmed.