87 Ark. 611 | Ark. | 1908
(.after stating the facts). The chancellor evidently proceeded upon the 'theory that Piggot & Prebble, the subcontractors, were necessary parties to the action, and that is the question presented to us for determination.
In the case of St. Louis, Iron Mountain & S. Ry. Co. v. Love, 74 Ark. 528, the court, in construing sections 6661 and 6663 Kirby’s Digest, under which this action is brought, said:
“It is clear that, where a contractor or subcontractor is the primary debtor, the suit -should be against him to establish the liability, and not against the railroad company primarily. They may 'both be joined in the suit, the contractor so that the debt may be established against him, and the railroad company so that the lien therefor may be adjudged against its property; but it does not follow that a personal judgment must be rendered against the contractor before a lien can be declared against a railroad company.” See also Luttrell v. Knoxville, L. & J. R. Co., 105 S. W. (Tenn.) 565 and cases cited.
In Jones on Liens, § 1303, the rule is stated as follows:
“A subcontractor, who holds an open, unsettled, or disputed account against the principal contractor should obtain an adjudication of this before seeking to establish a lien against the owner, or at the same time that he seeks to do so. He should either obtain a judgment against the contractor before bringing an action to enforce the lien, or he should make the contractor a party to that action. The burden of ascertaining whether there is any defense to the action ought not to be put upon the owner of the property. He is not presumed to have any knowledge upon the subject. Further than this, if the contractor establishes his lien against the property, and the owner is compelled to pay it, he had recourse on the principal contractor. He ought to be furnished with an adjudicated claim, and not with a mere open account.”
In the present case, the railroad company, which is the owner of the property sought to be reached by the lien, has been furnished with an adjudicated claim. The account between appellamt and the subcontractors became res judicata by the judgment of the justice of the peace, from which no appeal was. taken; and that is all that could have been acomplished by making the subcontractors parties to this action. Since the object in making the subcontractors parties to this - suit was to fix the liability of appellant against them, and since that had already been established by a judgment of a court of competent jurisdiction, we are of the opinion that the chancellor erred in not enforcing a lien against the railroad of appellee in favor of- appellant for the amount sued for, the undisputed evidence showing that it had not been paid.
The decree is therefore reversed, and the cause remanded with directions to enter a decree in acordance with this opinion.