Johnson v. Keeler

• Decision Date: 09 May 1891
• Citation: Johnson v. Keeler, 46 Kan. 304, 26 P. 728 (Kan. 1891)
• Parties: JOHNSON v. KEELER et al.
• Court: Kansas Supreme Court

26 P. 728

46 Kan. 304

JOHNSON v. KEELER et al.

Supreme Court of Kansas

May 9, 1891

Syllabus

1 In an action to foreclose a mechanic’s lien, all lienholders and incumbracers should be made parties, and a lienholder who is not made a party in the first instance is entitled, upon application, to come in at any time before final judgment, and, by an answer in the nature of a cross-petition, set forth his claim of lien, and ask to have the same foreclosed.

2. In such a case his right to proceed to a final determination of his lien will not be defeated. Where the plaintiff’s petition is held upon demurrer to be insufficient, or where there is a compromise or withdrawal of any claim for a lien by the plaintiff or other lienholder who is a party in the action.

Error from district court, Finney county; A. J. ABBOTT, Judge.

H. R Boyd, for plaintiff in error.

Hopkins & Hoskinson, for defendants in error.

OPINION

JOHNSTON, J.

Keeler & Hudson contracted to build a house for Benjamin H. Barr, and purchased building material for that purpose of the Western Lumber Company. Failing to pay for the material, the lumber company filed a statement and claimed a lien on the property improved. Thereafter the lumber company brought an action against the contractors and the owner to recover what was due from the contractors and to foreclose their lien. Subsequently John Johnson, who had also furnished material to the contractors for the same building, which had not been paid for, and who had duly filed and claimed a lien, applied to the court to be made a party to the action brought by the lumber company, and to have his lien on, and interest in, the property determined. This application was heard by the court and granted on May 31, 1888, and Johnson filed an answer in the nature of a cross-bill, setting forth the sale of the material for use in the construction of the house, and that it was so used by the contractors; that there was still due thereon the sum of $76.50; that a statement for a subcontractor’s lien had been filed, which was set out at length; and he asked for a judgment against the contractors for the amount due, and that it be declared a prior and paramount lien to that of the lumber company upon the premises of Barr. On June 1, 1888, a demurrer, filed by Barr to the petition of the lumber company, was sustained by the court, upon the ground that the statement filed by the company for a subcontractor’s lien was insufficient to authorize a lien against the property of Barr. Proceedings in error were instituted in this court by the lumber company, and the ruling of the district court was reversed. Cunningham v. Barr, 45 Kan.-, 25 P. 583. After the demurrer of the lumber company was sustained, and on June 18, 1888, the defendants Barr and Keeler & Hudson filed separate motions to strike the answer or cross-petition of Johnson from the files, and to dismiss it because the pleading was unwarranted by the Code, and the court had no jurisdiction to hear and determine the matters therein stated. These motions were sustained, and Johnson complains of the ruling.

The action of the court in dismissing the cross-petition of Johnson cannot be sustained. He was a proper party in the action, and his pleading set forth a cause of action and right to affirmative relief. He had an interest in the subject of the controversy, and...