Calton Properties, Inc. v. Ken's Discount Bldg. Materials, Inc., 84-85
| Decision Date | 29 May 1984 |
| Docket Number | No. 84-85,84-85 |
| Citation | 282 Ark. 521,669 S.W.2d 469 |
| Parties | CALTON PROPERTIES, INC. et al., Appellants, v. KEN'S DISCOUNT BUILDING MATERIALS, INC., Appellee. |
| Court | Arkansas Supreme Court |
David W. Kirk, El Dorado, for appellants.
Guthrie, Burbank, Dodson & McDonald by David F. Guthrie, El Dorado, for appellee.
The materialmen's lien statutes contain a fifteen month limitation for the commencement of an action either to foreclose a lien or to proceed against a bond discharging a lien. Service of process was not had in this case until more than forty-seven months after the filing of the complaint and no order was obtained extending the time for service. The trial court granted a default judgment against the bond. We reverse and dismiss. This case was certified to us by the Court of Appeals under Rule 29(1)(c).
From June 12, 1978, the appellee, Ken's Discount Building Materials, Inc., supplied building materials to the contractor, who was constructing a home for the landowners. On October 19, 1978, which was within 120 days after delivery of the last materials, the appellee filed a verified statement of account and a claim of lien against the real estate. See Ark.Stat.Ann. § 51-613 (Repl.1971). On March 6, 1980, which was within fifteen months after the filing of the lien, the appellee filed a complaint which sought both a judgment against the contractor and the landowners and a foreclosure of the lien. See Ark.Stat.Ann. §§ 51-615, 51-616 and 51-617. No summons or warning order was issued when the complaint was filed. On March 20, 1980, the appellant, Calton Properties, Inc., as surety, and the contractor, as principal, filed a bond to discharge the lien pursuant to Ark.Stat.Ann. § 51-641. If this type of bond is approved by the clerk, and the materialman, after notice, does not question its sufficiency or form, the lien is discharged and the materialman must seek recourse solely against the bond. Ark.Stat.Ann. § 51-641 and see Stewart-McGehee Construction Co. v. Brewster and Riley Feed Mfg. Co., 171 Ark. 197, 284 S.W. 53 (1926).
The bond statute, Ark.Stat.Ann. § 51-641, provides that actions against the bond must be filed within the same period of limitations as an action to enforce a lien or else the bond is void. The applicable materialmen's lien statute, Ark.Stat.Ann. § 51-616, provides that an action to enforce a lien must be commenced within fifteen months after filing the lien.
On September 24, 1982, which was more than forty-seven months after the filing of the lien, a summons was issued against the contractor and service was had three days later.
At the time the complaint was filed ARCP Rule 3 provided that the filing of a complaint commenced an action only if service was completed within 60 days, unless the time for service was extended by the trial court. Simpson v. Bailey, 279 Ark. 27, 648 S.W.2d 464 (1983). The time for service was not extended. Consequently, the action was not commenced within fifteen months after filing the lien and the bond was void.
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...See, e.g., McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990); Calton Properties, Inc. v. Ken's Discount Building Materials, Inc., 282 Ark. 521, 669 S.W.2d 469 (1984); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983) (supp'l That is clearly not the ......
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Travelers Cas. & Sur. Co. of Am. v. Sweet's Contracting, Inc.
...the claimant shall have recourse only against the principal and surety upon the bond. See Calton Props., Inc. v. Ken's Discount Bldg. Materials, Inc., 282 Ark. 521, 522–23, 669 S.W.2d 469, 470 (1984) ; Ark.Code Ann. § 18–44–118(b). If an action to enforce the lien is filed within the time p......
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...§ 18-44-118, the claimant must pursue relief afforded by the bond, not the land. See Calton Properties, Inc. v. Ken's Discount Bldg. Materials, Inc., 282 Ark. 521, 523, 669 S. W. 2d 469, 470 (1984). Although Wachter categorizes its claim as an action to enforce a mechanics' lien, it is more......
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Forrest City Mach. Works, Inc. v. Lyons, 93-487
...of the complaint, unless the time for service has been extended by the court under ARCP Rule 4(i). Id.; Calton Properties v. Ken's Disc. Bldg. Mat., 282 Ark. 521, 669 S.W.2d 469 (1984) (earlier decision involving the same rule except it then provided service was to be completed within 60 da......