Union Pacific Railway Co. v. Davidson, 21 Colo. 93

Union Pacific Railway Co. v. Davidson

21 Colo. 93 | Colo. | 1895

Mr. Justice Campbell

delivered the opinion of the court.

1. There was no compliance by the plaintiff with that part of section 3 (p. 249, Session Laws 1889) which requires the claimant of a lien to serve upon the owner of the property, his agent or trustee, a copy of the statement of lien at or before the time when he files the same with the county clerk and recorder. The proof is that the plaintiff went to the office of Mr. Choate, the superintendent of the defendant company, to serve such copy upon him, but the latter was not in his office. Thereupon the plaintiff gave said copy to a clerk in the office, who promised to deliver it to the superintendent; but there is no evidence to show that the promise was kept or the notice received by the superintendent. If it be assumed that Mr. Choate was the agent or trustee of the company, in respect to this work of grading (as to which there is no evidence at all), under no construction can it be held that this, service of a copy of the lien statement upon the clerk of the superintendent of the defendant company was such service as the statute prescribes.

2. It has been held in other jurisdictions, even in the absence of a statute to that effect, that in actions to enforce the lien of a subcontractor arising under mechanic’s lien laws, the contractor should be made a party defendant. The mere statement of this rule carries with it its own justification. The general scope of our mechanic’s lien acts clearly contemplates that the contractor and all claimants of liens shall be made parties to an action brought to enforce a lien, and that all shall have their rights adjudicated in one action and protected and enforced in one judgment.

Section 8 (p. 251, Session Laws 1889) declares that “any such claim of any subcontractor that shall be established under this act by the judgment or decree of court, shall, to the full amount thereof, be a valid set-off in favor of such owner and against the contractor,” but not to “any greater *95extent than the contract price for the building or other improvement, or total indebtedness of the owner to the contractor for the whole work.” We must not suppose that the legislature by this intended that the owner should be entitled to such set-off against the contractor unless the latter was a party to the action in which his lights were determined. In this case service upon the original contractor was feasible. He was in the county at the time the suit was instituted, and he could easily have been brought in. To this effect is the case of Davis v. Mouat Lumber Co., 2 Colo. App. 381.

For the foregoing reasons, the judgment should be reversed and remanded, with instructions to the district court to set aside the decree in so far as it seeks to enforce a lien against the property of the defendant railway company, and as to such defendant, to dismiss the action.

Deversed.