Kalamath Inv. Co. v. Asphalt Paving Co.

• Decision Date: 03 September 1963
• Docket Number: No. 20136,20136
• Citation: 153 Colo. 109,384 P.2d 938
• Parties: KALAMATH INVESTMENT CO., a Colorado corporation, and Columbine Chapel, Inc., a Colorado corporation, Plaintiffs in Error, v. ASPHALT PAVING CO., a Colorado corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 938

384 P.2d 938

153 Colo. 109

KALAMATH INVESTMENT CO., a Colorado corporation, and Columbine Chapel, Inc., a Colorado corporation, Plaintiffs in Error, v. ASPHALT PAVING CO., a Colorado corporation, Defendant in Error.

No. 20136.

Supreme Court of Colorado, In Department.

Sept. 3, 1963.

Stanley W. Prisner, Denver, for plaintiffs in error.

F. Richard Hite, Denver, for defendant in error.

McWILLIAMS, Justice.

Hudson, doing business as Best Wood Products Co., brought an action to enforce a materialman's lien against certain described land and improvements situate in Jefferson County and owned by Columbine Chapel, Inc., hereinafter referred to as Columbine. Also named as a party defendant was the Kalamath Investment Co., which had an interest in the subject property by virtue of a recorded deed of trust.

Numerous other lien statements concerning this same property had also been duly filed in the office of the Jefferson County Clerk and Recorder and these lien claimants were joined as parties defendant, one being Asphalt Paving Co., hereinafter referred to as Asphalt, which by cross claim asserted its right to a lien against the aforementioned property of Columbine.

Apparently all claims, counterclaims and cross claims arising out of Columbine's efforts to construct a chapel were resolved without the necessity of trial, save and except that of Asphalt. This latter claim in due time came on for a trial to the court, at the conclusion of which a money judgment was entered for Asphalt against Columbine in the amount of $3909.40, plus interest and costs. The trial court then went on to decree that Asphalt 'is entitled to a lien on the property' owned by Columbine and that the same should be 'sold pursuant to the statutes of Colorado pertaining to foreclosure of mechanic's liens.' By writ of error Columbine and Kalamath Investment Co. seek reversal of this judgment.

The central issue to be resolved is whether Asphalt, the lien claimant, as a prerequisite to the establishment of its lien right against the real property owned by Columbine must show that within six months 'after the last work or labor is performed, or materials furnished or after the completion of the building, structure or other improvement' it duly filed in the office of the County Clerk and Recorder of Jefferson County 'a notice stating that such action [i. e. to enforce the lien] has been commenced within that time to enforce the same.'

The statute with which we are primarily concerned is C.R.S. '53, 86-3-10 and reads as follows:

'No lien claimed by virtue of this article, as against the owner of the property or as against one primarily liable for the debt upon which the lien is based or as against anyone who is neither the owner of the property nor one primarily liable for such debt, shall hold the property longer than six months after the last work or labor is performed, or materials furnished or after the completion of the buildings, structure or other improvement, or the completion of the alteration, addition to, or repair thereof, as prescribed in section 86-3-9, unless an action shall have been commenced within that time to enforce the same, and unless also a notice stating that such action had been commenced shall have been filed for record within that time in the office of the clerk and recorder of the county in which said property is situate. Where two or more liens are claimed of record against the same property, the commencement of any action and the filing of the notice of the commencement of such action within that time by any one or more of such lien claimants in which action all of the lien claimants, as appear of record, are made parties, either plaintiff or defendant shall be sufficient.' (Emphasis supplied)

The trial court held 'that the filing of the notice was not required', apparently so holding on the premise that a notice of lis pendens is not required where the action to enforce the lien is against the owner of the property who in this instance is also the one primarily liable for the debt.

It is quite true that in Laverents v. Craig, 74 Colo. 297, 225 P. 250 (1923) it was said:

'* * * lis pendens is not a necessary prerequisite of a suit where the action is against the owner of the property or one primarily liable for the debt. In such case there is no necessity for the notice given by the filing of a notice of lis pendens.

'In Sheffield v. Robinson [Early], 73 Hun, 173, 25 N.Y.Supp. 1098, the court said: 'The object of a lis pendens is to give notice of the pendency of the action to persons who may subsequently acquire or seek to acquire rights in the property, but it is not required for the protection of the parties to the action, for they have notice of its pendency, and of the claim made by it.'

'This ruling is not to be understood therefore, as waiving the requirement in cas...