Greeley, S.L. & P.R. Co. v. Harris

• Decision Date: 01 February 1889
• Citation: 12 Colo. 226,20 P. 764
• Parties: GREELEY, S. L. & P. R. CO. v. HARRIS.
• Court: Colorado Supreme Court

20 P. 764

12 Colo. 226

GREELEY, S. L. & P. R. CO. v. HARRIS.

Supreme Court of Colorado

February 1, 1889

Appeal from district court, Boulder county.

Appellee brought his action in the court below to enforce a mechanic's or laborer's lien against the property of the appellant, under the act of 1881, and by his complaint made the following parties defendants: Thomas B. O'Hara and Charles Schroeder, William H. Cox, C. W. Collins, and the Greeley, Salt Lake & Pacific Railroad Company,--alleging that the defendant company was the owner of a certain railway that it let a contract for the grading of a portion of its road-bed to defendant Collins; that Collins sublet the work to defendant Cox, and that Cox sublet the work, or part of it, to the defendants Thomas B. O'Hara and Charles Schroeder, partners doing business under the firm name of O'Hara & Schroeder; and that the claims upon which a recovery is sought were for work performed for said firm between the month of November, 1881, and the 1st day of February, 1882, upon said subcontract, by the plaintiff, and those who assigned to him, with the exception of two claims which are for board and supplies furnished to the employes of said firm between said dates.

Plaintiff alleges the filing and recording of certain notices of liens in the office of the clerk and recorder of the proper county upon Monday, the 6th day of February, A. D. 1882, and the service of copies of each thereof the same day upon the defendant the Greeley, Salt Lake & Pacific Railroad Company that on said 6th day of February, 1882, and since said date said railroad company was and is indebted to the said contractors and said subcontractors in the sum of $2,500. Plaintiff demands judgment against O'Hara, Schroeder Cox, and Collins for the sum of $2,169.16 and interest; and that it may be decreed that the plaintiff has a lien upon the railway and other property of the defendant railroad company for said amount; and for general relief. To the said complaint were attached as exhibits the above-mentioned notices of liens, all in the usual form under section 5 of the lien act of 1881, and in each of which a lien is claimed for work and labor performed or supplies furnished between the 30th day of November, A. D. 1881, and the 1st day of February, 1882.

Trial was had to the court, and the action dismissed as to the defendant Schroeder. Judgment was entered in favor of defendant Cox for costs; and in favor of plaintiff, Harris, against the defendants Thomas B. O'Hara and the appellant for the sum of $2,169.16 and interest, making a total of $2,500, which sum was decreed to be a lien upon appellant's property, and the same ordered to be sold in satisfaction thereof.

The sections of the mechanic's lien act referred to in the opinion are to be found upon pages 169-171 of the Session Laws of 1881. By section 4 of the act it is provided, in substance, as follows, to-wit: That every subcontractor, whether immediate or remote, and every mechanic, laborer, and material-man performing work or labor, etc., shall have a lien by serving on the person for whose structure the work has been performed, etc., or upon his agent in charge, or, where there is no agent, by posting in a conspicuous place on the structure, before 5 o'clock in the afternoon of the Saturday next following after performing the work and labor or furnishing the materials, a statement substantially like the following:

'(Place and date.)

' To A. B., _____:

'I have performed work and labor on your structure on _____ street, between _____ and

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