Lebanon Lumber Co. v. Clarke

• Decision Date: 15 January 1913
• Citation: 152 S.W. 550,151 Ky. 543
• Parties: LEBANON LUMBER CO. v. CLARKE et al.
• Court: Kentucky Court of Appeals

152 S.W. 550

151 Ky. 543

LEBANON LUMBER CO. v. CLARKE et al.

Court of Appeals of Kentucky.

January 15, 1913

Appeal from Circuit Court, Marion County.

Action by the Lebanon Lumber Company against W. A. Clarke and another. Judgment for defendant named, and plaintiff appeals. Affirmed.

Lafe S Pence, of Lebanon, for appellant.

William W. Spalding, of Lebanon, for appellees.

SETTLE J.

This appeal is prosecuted from a judgment of the Marion circuit court refusing appellant a personal judgment upon an account of $258.28 against the appellee, W. A. Clarke, and the enforcement of a materialman's lien against his farm. The original petition simply sought judgment against the appellee for $258.28 as a balance alleged to be due appellant upon an account for building materials sold him at his instance and upon his promise to pay therefor. But by an amended petition it was alleged that the building materials were sold one R H. Carter for appellee, to be used in making an addition to and repairs on a dwelling house of the latter; that both Carter and appellee promised to pay therefor, and both made payments on the account until the amount thereof was reduced to the sum sued for. It was also alleged in the amended petition that appellant, for the purpose of obtaining a materialman's lien upon the real estate of appellee upon which the materials bought of it were used, filed and caused to be recorded in the office of the clerk of the Marion county court within six months of furnishing the last of the material sold Carter for appellee a verified statement conforming to the requirements of section 2468, Kentucky Statutes. The prayer of the amended petition again asked a personal judgment against appellee, that the lien alleged to have been acquired upon appellee's dwelling house and land through the filing in the clerk's office of the statement referred to be enforced by a sale of enough of the property to satisfy the lien debt, and to that end that the case be transferred to the equity docket. Appellee by answer traversed the averments of the petition, as amended, and following the taking of proof by depositions, the cause was tried upon its merits, with the result already indicated. The rejection by the circuit court of appellant's claim of a materialman's lien was clearly proper for the reasons (1) that the statement necessary to its obtention was not filed in the clerk's office within six months of its furnishing the last of the material, and (2) the land described in the statement for the lien is not the land upon which the material was used, but a wholly different tract, which, though owned by appellee, is a mile distant, and wholly separated from the farm on which he resides and where the material furnished by appellant was used.

Section 2468 of the statute, supra, declares that "the liens mentioned in the preceding sections shall be dissolved unless the claimant, within six months after he ceases to labor or furnish materials, as aforesaid, files in the office of the clerk of the county court of the county in which such building or improvement is situated a statement," etc. The requirement as to the filing of the statement within six months after the last of the material is furnished is mandatory, and the failure to comply with it defeats the lien. Ponder v. Bldg. & Loan Association, 59 S.W. 523, 858, 22 Ky. Law Rep. 1074. The last item of...