Houston Lumber Co. of Russell v. Morris
| Decision Date | 05 May 1956 |
| Docket Number | No. 40060,40060 |
| Citation | 179 Kan. 564,297 P.2d 165 |
| Parties | HOUSTON LUMBER COMPANY OF RUSSELL, Kansas, Inc., a Corporation, Appellee, v. William Clifton MORRIS, Jr., and Marguerite L. Morris, husband and wife; (Herman H. Fabrizius;) and The Home State Bank, a Kansas Corporation, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Under G.S.1949, 60-705, a defendant may demur to the petition only where it appears on the face of the petition that the stated grounds of the demurrer exist.
2. To be sufficient, a mechanic's lien statement of a subcontractor, under G.S.1949, 60-1403, must show that it was filed in the office of the clerk of the district court within sixty days after the date on which material was last furnished and, verified by affidavits, must set forth the amount due from the contractor to the claimant, and the items claimed as nearly as practicable, must state the name of the owner and a description of the real estate upon which the lien is claimed, the name of the contractor, the name of the claimant, and must disclose by express averment or by reasonable implication that the purchaser of the material made the improvement under contract with the owner.
3. The record examined in an action to foreclose a mechanic's lien, and held, that the lien statement filed by the plaintiff was sufficient.
4. The record further examined, and held, that the trial court did not err in overruling the defendants' demurrer to the original petition nor their demurrer to the amended petition as amended.
Richard M. Driscoll, Russell, argued the cause, and Jerry E. Driscoll, and O. G. Rouse, Russell, were with him on the briefs for the appellants.
George W. Holland, Russell, argued the cause, and Marvin E. Thompson, and Clifford R. Holland, Jr., Russell, were with him on the briefs for the appellee.
This was an action to foreclose a mechanic's lien. The demurrer of certain of the defendants to the amended petition, as more fully set out later, was overruled, and they appeal.
A review of the record as abstracted discloses the following.
On April 8, 1954, the plaintiff filed its petition alleging its status and that the defendants Morris owned certain described real estate in the city of Russell; that the defendants Morris contracted with the defendant Fabrizius for the erection of a dwelling house on the real estate and that Fabrizius, as contractor, purchased building materials between May 2, 1953, and March 6, 1954, for the erection of the dwelling house as specifically set forth in an exhibit attached to and made part of the petition, of the reasonable value of $9,921.36, and defendants Morris and Fabrizius had each promised to pay such amount, and that no part had been paid. Plaintiff further alleged that on April 8, 1954, and within four months after the last item was furnished, it filed in the office of the clerk of the district court of Russell county a verified mechanic's lien statement, a copy being attached to and made a part of the petition, and caused a notice of the filing to be served upon defendants Morris. Allegations as to a mortgage on the real estate made by defendants Morris to defendant The Home State Bank on November 14, 1953, need not be detailed. Plaintiff prayed for a money judgment against defendants Morris and Fabrizius, for the foreclosure of its mechanic's lien and that the judgment be decreed a first and prior lien.
The verified lien statement stated the defendants Morris were the owners of the lands which were described; that the contractor was Fabrizius; that Houston Lumber Company was the claimant and that the amount due was $9,921.36 and interest from March 6, 1954. In the statement, a mechanic's lien was claimed upon the described real estate and improvements, and that claimant 'furnished materials under a subcontract with Herman H. Fabrizius, contractor, for the erection of a dwelling house upon the above described premises and within the past 60 days, the last items of material being furnished for improvement of said premises March 6, 1954.'
The defendants, except Fabrizius, filed a motion to make the above petition more definite and certain which was sustained in part and on September 14, 1954, an amended petition was filed, but it need not be reviewed for, for our purposes here, it was the same as the original petition. The defendants' demurrer to this amended petition, filed November 30, 1954, was overruled on December 16, 1954.
On March 5, 1955, defendants Morris and the defendant The Home State Bank filed their answers, and on April 27, 1955, the plaintiff filed its replies thereto. On the latter day the plaintiff filed a motion that if the court found the mechanic's lien statement attached to its petition be defective as not containing a specific or properly inferrable allegation as to contractual relation between defendants Morris and defendant Fabrizius for the construction of the dwelling that it be permitted to amend its lien statement by insertion of language set forth in the motion. On the hearing of this motion the trial court held the mechanic's lien statement sufficient, but that if plaintiff desired to amend, it should be permitted to do so and it ordered accordingly. Thereafter on May 14, 1955, plaintiff amended its mechanic's lien statement by inserting that Fabrizius, contractor, contracted with the Morrises for the erection of a dwelling house on the described real estate.
On June 6, 1955, the defendants Morris and the defendant The Home State Bank filed their joint and separate demurrer to 'the plaintiff's amended petition and amendment thereto and amended mechanic's lien statement' on four grounds, which will be mentioned later herein. This demurrer was overruled by the trial court on June 13, 1955. In due time defendants perfected their appeal to this court from the ruling on the last above date, but from no other ruling, decision, order or judgment of the trial court.
Appellants specify as error that the trial court erred: 1. in overruling their demurrer to the amended petition and lien statement; 2. in permitting plaintiff to amend its lien statement; and 3. in overruling their demurrer to the amended petition and amendment thereto and the amended lien statement.
In a preliminary way, it is noted that no appeal was perfected from the ruling of the trial court allowing the plaintiff to amend its mechanic's lien statement. No appeal having been taken, there is nothing before us for review (See, e. g., Baker v. John D. Maguire's, Inc., 176 Kan. 579, 272 P.2d 739, and cases cited). The same would be true as to the overruling on December 16, 1954, of the demurrer filed November 30, 1954, but in view of the rule that a demurrer searches the record and is applied to the first defective pleading, Simmons v. Gill, 161 Kan. 123, 166 P.2d 574; Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 294 P.2d 258, the entire record will be examined.
It is also to be borne in mind that under the code of civil procedure the defendant may demur to the petition only when it appears on the face of the petition that the stated grounds of the demurrer exist. (See G.S.1949, 60-705; Kendall v. Elliot, 177 Kan. 630, 281 P.2d 1088; and Lorey v. Cox, 175 Kan. 66, 259 P.2d 194, and cases cited.)
In discussing appellant's contentions we need not separately note the first demurrer which was solely on the ground that facts were not stated sufficient to constitute a cause of action, as that ground is reasserted in the second demurrer.
The grounds of the last demurrer were: 1. the court had no jurisdiction of the parties nor of the subject matter of the action; 2. several causes of action were improperly joined; 3. another action was pending between the same parties for the same cause in the United States district court of Kansas; and 4. facts sufficient to constitute a cause of action were not stated. In their brief appellants do not mention the second and third grounds of their demurrer and they are considered as abandoned.
Appellants contend the amended petition was demurrable for two reasons.
The first reason asserted is...
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