3 Kan. App. 484 | Kan. Ct. App. | 1896
The opinion of the -court was delivered- by
This action-was originally commenced September 20, 1888, by the Farmers Loan and-Trust Company of Kansas, in the district court of Sedgwick county, to foreclose a certain mortgage upon real estate belonging to W. W. Dill and Mattie J. Dill, which mortgage was executed and delivered May 2,1887, and recorded May 28, 1887. The North and South Lumber Company, Elizabeth Buxton and J. R. Stone were made parties defendant. On October 9, 1888, the North and South Lumber Company filed its answer and cross-petition, in which it alleged that on or about the 10th day of February, 1887, the defendants Dill
There was but one real issue in the court below, and practically but one question is presented to this court for its decision, and that is the question of priority of lien as between Frank Wood, trustee, and the North and South Lumber Company. The record shows that the contract for furnishing material for erecting the building upon the premises of the defendants Dill was made prior to the giving of the mortgage of Frank Wood, trustee, and that in the action to foreclose the mechanic’s lien of the North and South Lumber Company neither the’ Farmers Loan and Trust Company of Kansas, which was the original owner of said mortgage, nor Frank Wood,'trustee, was made a party.
It is contended upon the part of the plaintiff in error that, as more than one year had elapsed between the time of furnishing the material by the-North and South Lumber Company to Dill and the time when this action was commenced and when Frank Wood, trustee, was made a party thereto, the North and South Lumber Company cannot enforce said lieii against the mortgage in question, for the reason that neither the original payee nor the present holder of said mortgage was made a party to the action brought by the North and South Lumber Company to foreclose its lien, nor were they in any manner brought into court to have# their rights to the premises in question adjudicated until more than one year from the completion of the contract between the North and South Lumber Company and Dill; and that, therefore, the court erred in decreeing the lien of the North and
We áre of the opinion that the position of the plaintiff in error is correct. The statute in force with .regard to mechanics’ liens a.t the time of the contract in question was as follows :
“Sec. 633. Such lien may be enforced by civil action in the district court of the county in which the land is situated, which action shall be brought within one year from the time any new building, erection or improvement is completed.
“Sec. 634. In such action all persons whose liens are filed as-herein provided, and other incumbrancers, shall be made parties, and issues shall be made and trials had as in other cases. . . .’’
“ Sec. 636. In all cases where judgments have been or may hereafter be rendered in favor of any person or persons, to enforce a lien under the provisions of this act, the real estate or other property shall be ordered to be sold as in' other cases of sales of real estate, such sale to be without prejudice to the rights of any prior incumbrancer, owner, or other person not parties to the action.’’ (Ch. 80, Gen. Stat. 1885.)
The right to a mechanic’s lien is purely statutory in its nature, and, where one desires to avail himself of such right, the provisions of the statute must be strictly complied with. We presume it will not be questioned that, where the statute prescribes a specific period of time within which an action may be maintained, such action may not be maintained after the expiration of the time stated, unless some exception appears in the particular case at issue. And as the statute above quoted fixes one year as th.e time within which an action may be maintained to enforce a mechanic’s lien, when the year has expired, a person who relies upon such lien as a right would still possess the right without means of enforcement under
In Smith v. Hurd, 50 Minn. 503 (52 N.W. Rep. 922), the court made use of the following language, in deciding a question similar to the one here in issue :
“As to each defendant in an action, the action is commenced and is pending only from the time of service of the summons on him, or of his appearance without service ; and, where each may object that the action was not commenced within the time limited by statute, its commencement as to his objection is to be determined by the time of service oh him, and not by the time of service on some other defendant. This is a rule applicable to every action, and applies as well to actions to enforce mechanics’ liens as to any others. And any one who may defend against such a lien, who may show that for any reason it is not a lien as against his interest, may object that the lien had expired, or the remedy upon it been lost by lapse of time, before the action was commenced against him. This also is a rule applicable to every action. It amounts to just this: that when an action is commenced as to any defendant there must be an existing cause of action against him, and the right to a remedy upon it.’’
In the case of Ballard v. Thompson, 40 Neb. 529 (58 N. W. Rep. 1133), the supreme court of that state reaffirm the case of Green v. Sanford, 34 Neb. 363 (51 N. W. Rep. 967), in the following language :
“It is therein declared to be the plain meaning of*491 the statute, that the lien is preserved as against those' persons only who are made parties to the suit prior to the expiration of the statutory period for enforcing it by action.”
The Minnesota statute, at the time of the decision first referred to, after providing for the filing of the' lien, says:
‘ ‘ It shall operate as a lien until the expiration of two years after the completion of such skilled services or labor or the furnishing of such materials.”
** And the Nebraska statute, under which the case of Ballard v. Thompson was decided, after providing for the manner of filing the statement of accounts in order to procure a lien, reads as follows :
“ Which account . . . shall, from the commencement of such labor or the furnishing of such materials, for two years after the filing of such lien-, operate as a lien on the several structures and buildings • and the lots on which they stand.”
It is contended by counsel for the North and South Lumber Company that the statutes of Minnesota and Nebraska are so dissimilar to ours that the decisions of the courts of those states are not applicable in the construction of our statute. Counsel argues that in those states the -statute provides a period of limitation for the lien itself, and not for the remedy for the enforcement of such lien. Conceding it to be true that the statutes of those states do so provide, it still appears to us that the doctrine announced applies with the same force whether the statute provides that the lien itself shall terminate, or the right to enforce the same shall terminate, at a specific time. Our statute provides :
“When a right of action is barred by the provision of any statute, it shall be unavailable either as^a cause
Under the different sections of the statute cited, it seems clear to - us that the lien of defendant in error could not in this action be successfully pleaded, either as a cause of action or a defense, so far as the claim of Frank Wood, trustee, was concerned. The case of Rice v. Simpson, 30 Kan. 28, cited by counsel for defendant in error, does not, we think, go to the extent claimed by counsel; still it tends strongly to support the same line of reasoning as is adopted by courts with statutes somewhat similar to our own. It is contended by the North and South Lumber Company that the objection here raised by plaintiff in error cannot be considered, for the reason that the statute of limitations was not pleaded in the court below, and that the only objection which was made to the introduction of evidence was for the reason that the answer and cross-petition of the North and South Lumber Company did not state facts sufficient to constitute a cause of action. The position is not well taken. We are of the opinion that the defect complained of appeared upon the face of the pleadings filed by the North and South Lumber Company; that the manner in which the plaintiff in error was brought into the case, and the time at which he appeared as a party, taken in connection with the face of the pleadings, made the objection to the introduction of evidence the proper method of raising the question. We think the case comes fairly within the rule laid down in Brown v. Mining Co., 32 Kan. 528, and also within the rule laid down in Greer v. Adams, 6 id. 203.
We deem it unnecessary to discuss any further questions raised by plaintiff in error. The judgment will be, reversed, and the cause remanded, with in