Rasmussen v. Reed
| Decision Date | 11 February 1974 |
| Docket Number | 73--215,Nos. 73--214,s. 73--214 |
| Citation | 505 S.W.2d 222,255 Ark. 1064 |
| Parties | W. N. RASMUSSEN et ux., Appellees, v. Mike REED et al., Appellants. |
| Court | Arkansas Supreme Court |
Rasmussen & Hogue by Sigun Rasmussen, Hot Springs, for appellants.
Robert D. Ridgeway, Hot Springs for appellees.
These cases were consolidated at trial and on appeal since the same issues exist in each case.
A contractor, Don Kymes, agreed to build a house for the appellants. Appellees, Reed and Dollar, each contracted with Kymes to supply certain equipment for the house. The equipment supplied through Kymes by Dollar was valued at $1,360. The appliances furnished through Kymes by Reed were worth $506.30. Appellees, Reed and Dollar, were never paid by Kymes and timely filed their respective materialmen's liens on the Rasmussen property. Several weeks prior to the filing of the liens, Kymes was adjudged bankrupt. Neither Dollar nor Reed joined Kymes as a co-defendant in their complaint or petition to foreclose their respective liens until sixteen months after their liens were filed. Nevertheless, the lower court granted both appellees a lien upon one acre surrounding appellants' dwelling. Appellants contend that since appellees failed to join the contractor, Kymes, as a co-defendant within fifteen months of the filing of their liens, the statutory limit, the tardy joinder constitutes a bar to this action.
Ark.Stat.Ann. § 51--610 (Repl.1971) requires the contractor to defend an action against the owner to enforce a lien. We have consistently interpreted this statute to require that the contractor is a necessary party to an action to enforce a lien. People's Building & Loan Assn. v. Leslie Lbr. Co., 183 Ark. 800, 38 S.W.2d 759 (1931); Cruce v. Mitchell, 122 Ark. 141, 182 S.W. 530 (1916), and Simpson et al. v. J. W. Black Lbr. Co., 114 Ark. 464, 172 S.W. 883 (1914). Appellees vigorously contend that this is a harsh requirement and we should reconsider our long standing rule.
The policy reason for that requirement is set forth in People's Building & Loan Assn. v. Leslie Lbr. Co., supra:
This court, therefore, is committed to the doctrine that in suits to foreclose mechanics liens the contractor is a necessary party. He should be made a party because the original contract for the improvements is made between the contractor and the owner. The other contract, that with materialman, is made between the contractor and materialman; the owner is not a party to it, and it is therefore necessary in a suit to foreclose a mechanic's lien against the property of the owner, to make the contractor a party. The owner is not primarily liable, and it is necessary to make the contractor a party to prove the debt against him, show that the material went into the construction of the building, before the materialman is entitled to a lien against the owner's property. . . .
The rationale and practicality of the requirement that the contractor be joined as a necessary party are further well stated in Simpson et al. v. J. W. Black Lbr. Co., supra:
He was a necessary party, both for his own (the contractor) and the owner's protection. The owners had the right to look to him for payment of any judgment that might be recovered against their property for materials furnished, having contracted with him to supply such materials and paid him the contract price for the improvement, and cannot be compelled to resort to another action against the contractor for the recovery of such sum of money in which the contractor would be at liberty to claim that he did not owe the materialman the amount for which the judgment was rendered and the lien enforced. It is the intention of the law to have the contractor to defend all such actions and be bound by the judgment rendered.
We adhere to our decisions.
Ark.Stat.Ann. § 51--616 (Repl.1971) places a fifteen month statute of limitations for commencement of a foreclosure action after timely filing a lien. In the imstant case, the petitions to foreclose the asserted liens were filed against the owners within the fifteen month period. However, the contractor was not joined as a party until sixteen months after the liens were filed. In each case, the joining of the contractor by leave of the court after the statutory period had expired, constituted a new cause of action...
To continue reading
Request your trial
-
Prince v. CMS Wireless LLC
...its claims against AT&T without joining Crown and Prince Consulting under Arkansas law. See ARK. CODE ANN. § 18-44-124; Rasmussen v. Reed, 505 S.W.2d 222, 223 (Ark. 1974) (interpreting § 18-44-124 as requiring that the contractor be joined as a necessary party to an action to enforce a lien......
-
Wachter Electric Co. v. Elec. Sys. Inc
...bond is approved, the claimant has recourse only against the principal and surety upon the bond); see also Rasmussen v. Reed, 255 Ark. 1064, 1065-1066, 505 S. W. 2d 222, 223 (1974)(holding that general contractor is a necessary party in action to foreclose lien). Claims for Unjust Enrichmen......
-
Johnson v. Southern Elec., Inc., CA
...period provided in the act for enforcement of such liens. Failure to do so results in dismissal of the lien action. Rasmussen v. Reed, 255 Ark. 1064, 505 S.W.2d 222 (1974); People's Building & Loan Association v. Leslie Lumber Co., 183 Ark. 800, 38 S.W.2d 759 (1931); Cruce v. Mitchell, 122 ......
-
First Pyramid Life Ins. Co. of America v. Stoltz
...in fact tolled. Cleveland v. Gravel Ridge Sanitary Sewer Imp. Dist. No. 213, 274 Ark. 330, 625 S.W.2d 446 (1981); Rasmussen v. Reid, 255 Ark. 1064, 505 S.W.2d 222 (1974); Alston v. Bitely, 252 Ark. 79, 477 S.W.2d 446 During the preliminary phases of the lawsuit below, the trial court made t......