Geppelt v. The Middle West Stone Company

• Decision Date: 11 October 1913
• Docket Number: 18,388
• Citation: 135 P. 573,90 Kan. 539
• Parties: EMIL GEPPELT, Appellee, v. THE MIDDLE WEST STONE COMPANY et al., Appellees; THE ALLIS-CHALMERS COMPANY, Interpleader, Appellant
• Court: Kansas Supreme Court

135 P. 573

90 Kan. 539

EMIL GEPPELT, Appellee, v. THE MIDDLE WEST STONE COMPANY et al., Appellees; THE ALLIS-CHALMERS COMPANY, Interpleader, Appellant

No. 18,388

Supreme Court of Kansas

October 11, 1913

Decided July, 1913.

Appeal from Allen district court; OSCAR FOUST, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACTIONS--Involving Liens on Same Property--Properly Consolidated. The proceedings following the consolidation of two actions involving the validity and priority of mechanic's liens and other claims upon the same property examined and held to be without prejudice to the rights of the appellant.

2. MECHANIC'S LIEN--Statement Therefor Not Invalid. A mechanic's-lien statement showing all debit and credit items of the account for material furnished, and stating a balance due in a certain sum, is not invalid because in another portion of the statement a larger sum is claimed "less freight," the amount of which is not specified.

3. Same. It is proper in a mechanic's-lien statement to designate the person procuring material for the improvement of his real estate as "owner," although he has only a leasehold estate in the land.

4. When Time for Perfecting Lien Begins to Run. Where a material-man's mechanic's-lien statement shows both the date of the order and the date of the invoice of the material to the owner, the time allowed for perfecting the lien will be computed from the latter date.

5. MATERIAL-MAN'S LIEN--Not Defeated by Contract for Cash Sale--Nor by Reservation of Title. Where material has been furnished for the erection of improvements on real estate and has been used for that purpose, the right to a mechanic's lien is not defeated because the material was sold for cash and the title was reserved until the price should be paid.

6. Preferred Claim for Labor--When Not Defeated. The preferred claim of a laborer for wages earned within six months immediately preceding the appointment of a receiver for a corporation is not lost because not satisfied out of the first proceeds coming into the hands of the receiver, as the statute directs.

7. CONTRACT--Reserving Title in Vendor--No Effect Until Contract is Filed for Record. Section 5237 of the General Statutes of 1909 suspends the force of a provision in a contract of sale of personal property reserving title in the vendor, and renders the sale absolute so far as innocent purchasers and creditors of the vendee are concerned until the contract is filed for record.

8. MACHINERY--Not Attached to Realty--Not Subject to Mechanic's Lien. Machinery sold under an unrecorded contract reserving title in the seller does not become subject to mechanics' liens filed upon the property of the purchaser unless it has been attached to and has become a part of the realty.

9. NEW TRIAL--On Single Question of Fact. Under the circumstances stated in the opinion, a new trial is ordered for the determination of a single fact upon which the proper distribution of a fund of money depends.

Travis Morse, G. E. Pees, both of Iola, Gardiner Lathrop, Thomas R. Morrow, John M. Fox, Samuel W. Moore, and T. H. Reynolds, all of Kansas City, Mo., for the appellant.

R. H. Bennett, R. E. Cullison, and Frank R. Forrest, all of Iola, for appellees The Inland Steel Company et al.

Charles H. Apt, and Frederick G. Apt, both of Iola, for appellee George C. Dalgarno.

T. C. Taylor, of Iola, for appellee The Structural Steel Company.

H. A. Ewing, S. A. Gard, and G. R. Gard, all of Iola, for appellee Paul Klein.

OPINION

BURCH, J.:

The Allis-Chalmers Company sold two stone crushers to the Middle West Stone Company in April, 1910, under a contract reserving title in the vendor until the price should be paid. The crushers were delivered in August, 1910, but the title instrument was not filed until February 15, 1911. Mechanic's liens were filed upon the property of the stone company as follows:

R. E. Laidley, September 28, 1910;

The Kansas City Structural Steel Company, December 14, 1910;

The Inland Steel Company, January 16, 1911;

Paul Klein, February 7, 1911;

George C. Dalgarno, July 17, 1911.

In litigation over the stone company's affairs these liens were adjudged to be prior to the Allis-Chalmers Company's claim for the unpaid price of the crushers. The property of the stone company, including the crushers in controversy, has been sold under stipulation, and the contest is over the proceeds of the sale, which were insufficient to satisfy the mechanic's liens. The Allis-Chalmers Company appeals.

The appellant claims that it did not have a fair opportunity to contest the liens which have been mentioned on account of the procedure adopted by the trial court.

Emil Geppelt sued the stone company for wages, obtained judgment and levied an execution upon specific property belonging to the stone company, which is no longer in controversy. On August 15, 1911, a receiver was appointed for the stone company, who duly qualified and took possession of its property, including the crushers. All creditors of the stone company and all claimants of the property in the receiver's hands were given leave to interplead. Under this order the appellant filed an interplea, which was substantially a petition in replevin for the crushers. Formal interpleas were also filed by the Kansas City Structural Steel Company, Klein, and Dalgarno. In a separate action against the stone company brought by the Inland Steel Company mechanic's liens were established by the Inland Steel Company and by Klein, Laidley, and the Kansas City Structural Steel Company, but all questions of priority were reserved for future decision. Afterwards this action was consolidated with the Geppelt action for the purpose of establishing priorities and for the purpose of distributing the proceeds derived from the sale of the stone company's property. Formal interpleas were not filed by the Inland Steel Company and Laidley, who rested upon the pleadings they had previously filed in the separate suit. The consolidated case was brought on for trial immediately after the order of consolidation was made, and the validity and priority of the liens of the parties to the separate suit were...