Groesbeck v. Barger

• Decision Date: 01 May 1895
• Citation: 1 Kan.App. 61,41 P. 204
• Parties: W. F. GROESBECK et al. v. E. S. BARGER et al
• Court: Kansas Court of Appeals

41 P. 204

1 Kan.App. 61

W. F. GROESBECK et al. v. E. S. BARGER et al

Court of Appeals of Kansas, Northern Department, Central Division

May 1, 1895

Opinion Filed July 6, 1895.

MEMORANDUM.--Error from Smith district court; CYRUS HEREN judge. Action by W. F. Groesbeck and another against E. S Barger and others, to enforce a mechanic's lien. From the judgment plaintiffs bring error. Affirmed. The facts are sufficiently stated in the opinion, filed July 6, 1895.

Judgment affirmed.

Theodore Laing, for plaintiffs in error.

L. C. Uhl, and D. M. Relihan, for defendants in error, E. S. Barger, J. K. Burrow, Theo. Shoemaker, and D. W. Relihan.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

The plaintiffs in error, W. F. Groesbeck and E. A. Belisle, under a sub-contract with the contractors, furnished material for the erection of a building of which defendants, E. S. Barger et al., were owners. The last of the materials was furnished January 15, 1889. On the 20th day of May, 1889, a sworn statement of the lien claim was made and filed in the office of the clerk of the district court of Smith county, and a written notice of the filing of such lien served on the owners. This action was commenced on the 28th day of December, 1889. The court below gave judgment against the contractors for the amount claimed, but held that the sub- contractors had not so complied with the requirements of the mechanic's lien law as to entitle them to a lien as against the owners.

The only question in this case is as to the application of the several lien laws of this state to the claimed lien of plaintiffs. It is claimed that they, as sub-contractors furnishing materials, had a vested right to a lien under the act of March 2, 1872, and that that act governed as to the time within which the statement of the claim should be filed. On the other hand, it is contended that the act of February 26, 1889, which took effect March 1, 1889, repealed the former act with reference to the several steps necessary to be taken to preserve the lien, and must be complied with. That the sub-contractors' right to a lien became a vested right as soon as the materials had been furnished, which it was not in the power of the legislature to destroy, must be conceded as no longer open to argument in this state. (Weaver v. Sells, 10 Kan. 609.) The right to the lien must, therefore, be determined in this case by the act of 1872, which was the law in force at the time the materials were furnished. The steps required to be taken, by filing a verified statement within 60 days after the completion of the building and serving a copy on the owners, were not required in order to secure the right to a lien, but were made necessary merely in order to preserve a right already acquired by the furnishing of materials. They were but proceedings provided for preserving and enforcing the lien, and must be classed as mere remedies to be pursued by the lien claimant for the enforcement of the security given him by the statute. What pertains to the remedy merely is always subject to legislative change and control, subject only to the limitation that there must be left or provided in place of the old remedies a substantial and effective remedy, and the change must not have been such as to work a substantial impairment of the value of the contract or security. (Cooley, Const. Lim., 6 ed., 347, 447; Plow Co. v. Witham, 52 Kan. 185, 34 P. 751.) This rule is often applied to changes made in statutes of limitation. (Elliott v. Lochnane, 1 Kan. 126; Sohn v. Waterson, 84 U.S. 596, 17 Wall. 596, 21 L.Ed. 737; Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365.) The act of 1889 required a sub-contractor to file his statement within 60 days after the date upon which material was last furnished, and to give written notice of such filing to the owner; while the act of 1872 provided that such statement should be filed within 60 days after the completion of the building, and that a copy of the statement should be served upon the owner. As affects this case, these were the only changes made by the act of 1889. They were changes in the remedy which the legislature had a right to make.

We think the law is well settled that the right to a mechanic's lien must be determined by the law in force at the time the right becomes vested, but the lien must be established, or preserved and enforced, by the law...