J. W. Copeland Yards v. Sheridan

• Decision Date: 10 March 1931
• Citation: 296 P. 838,136 Or. 37
• Parties: J. W. COPELAND YARDS v. SHERIDAN ET AL. [a1]
• Court: Oregon Supreme Court

296 P. 838

136 Or. 37

J. W. COPELAND YARDS v. SHERIDAN ET AL. ^[a1]

Supreme Court of Oregon

March 10, 1931

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Suit by the J. W. Copeland Yards, a corporation, against T. J Sheridan and others, to foreclose a mechanic's lien, with cross-complaints by some of the defendants, the suit being consolidated with another brought by E. G. Jurgens, involving substantially the same parties. From a decree dismissing the complaint and cross-complaints, plaintiff and cross-complainants appeal.

Reversed and remanded, with directions.

Calkins & Calkins, of Eugene, for appellants.

H. E Slattery, of Eugene, for S. R. Allen.

BEAN C.J.

This suit was instituted by plaintiff to foreclose a mechanic's lien for materials furnished and delivered for the construction of buildings on a certain lot amounting to the sum of $674.68, $3.65 for the expense of filing the claim of lien, and $200 as attorney's fees.

This suit, by an order of the court made on April 30, 1929, was consolidated and thereafter heard with the suit of E. G. Jurgens v. T. J. Sheridan et al. (Or.) 296 P. ----, this day decided. There was no order or stipulation that the pleadings in one suit would in any way affect the other suit. The testimony in the two cases was taken together. Two separate decrees were rendered in the suits. The decree in the present suit, which we will term the lien case, dismissed the suit denying the lien of plaintiff and the liens of the defendants. The plaintiff and the defendants, who were lien claimants, appealed. We will, therefore, in order not to confuse the two suits too much, consider the lien foreclosure suit first.

The complaint is in the usual form. At the time of the construction of the buildings, F. L. Chambers was the record owner of the land upon which they were constructed, and it is alleged that the defendant H. W. Melby was the contractor and agent of defendant F. L. Chambers. It appears that one S. R. Allen at that time had a contract to purchase the lot in question, and afterwards a conveyance was executed by Chambers to defendant S. R. Allen.

The following defendants, by their answers and cross-complaints, set up liens upon the same buildings and lot: T. J. Sheridan, $109.50, filing and recording $5.25, attorney's fee $55; J. R. Sheridan $91.50, filing and recording $5.25, attorney's fee $55; and James E. Kindred, $113.50, filing and recording $5.25, attorney's fee $55, all of which were filed March 7, 1928; Ruth-Robertson Powder Company $195.55, filing and recording $3, attorney's fee $25, filed March 12, 1928; John F. Howell, $86.55, filing and recording $2.75, attorney's fee $15.00, filed March 19, 1928; Lane Hardware Company, Inc., $121.75, filing and recording $3, attorney's fee $25, filed March 23, 1928; N. T. Jorgenson, $252.92, filing and recording $2.75, attorney's fee $50, filed March 26, 1928, the last three named liens being assigned and transferred to defendant Ruth-Robertson Powder Company for the purpose of foreclosing the same; Raymond Marlatt, $183.50, filing and recording $7.45, attorney's fee $100, filed April 19, 1928; L. B. Sigwart $92.50, filing and recording $7.05, attorney's fee $50, filed May 26, 1928. Each of the answers contained allegations supporting the respective liens of defendants.

The title to lot 10, block 12, Driverton addition to Eugene, except the north nine feet thereof, was registered under the Torrens System Act. The several liens of the plaintiffs and defendants were memorialized in the certificate of title registry of Lane county. The suit was commenced June 12, 1928, within the time provided by statute.

On July 12, 1928, defendants F. L. Chambers and Edith K. Chambers filed an answer to the complaint and cross-complaint denying the allegations of the complaint and cross-complaints and alleging that the real property in question was once owned by defendants Chambers and sold to defendant Sidney R. Allen under contract of sale prior to the transactions set out in the pleadings and disclaimed any further interest in the suit or property involved.

S. R. Allen, defendant, who became owner of the lot on July 11, 1928, filed a demurrer to the complaint and the pleadings of James E. Kindred, T. J. Sheridan, J. R. Sheridan, and Ruth-Robertson Powder Company, and thereafter, on August 10, 1928, filed an answer denying every allegation of the complaint and the answers and cross-complaints and counterclaims, except as affirmatively alleged, and further averred that he was owner in fee simple of the lot described; that the real estate was not in the actual possession of any person other than the defendant Allen; that his title was superior to the interest of the other parties to the suit, and prayed that the title to the lot be quieted in him.

Appropriate replies were filed to the several answers and cross-complaints.

On January 22, 1929, one E. G. Jurgens filed for record a general warranty deed of the property in question from S. R Allen. On February 19, 1929, on motion of plaintiff, supported by affidavit, it was ordered by the court that E....