Sutherin v. Chesney

• Decision Date: 10 June 1911
• Docket Number: 17,128
• Citation: 85 Kan. 122,116 P. 254
• Parties: GEORGE W. SUTHERIN et al., as Partners, etc., Appellees, v. F. O. CHESNEY et ux., Appellants, and WILL M. RANDALL et al., Appellees
• Court: Kansas Supreme Court

116 P. 254

85 Kan. 122

GEORGE W. SUTHERIN et al., as Partners, etc., Appellees, v. F. O. CHESNEY et ux., Appellants, and WILL M. RANDALL et al., Appellees

No. 17,128

Supreme Court of Kansas

June 10, 1911

Decided January, 1911.

Appeal from Shawnee district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MECHANIC'S LIEN--Voluntary Appearance--Time of Commencing Action. In an action to foreclose a mechanic's lien the petition was filed and the cross-petitions of other lien-holders who were made defendants were filed before the sixty-day period had elapsed in which the owner is not liable to an action. No summons was issued for the defendant owner, who was a nonresident, and no attempt was made to procure service by publication. After the sixty-day period had elapsed the owner voluntarily appeared and answered. Held, that, as to the owner, the action was commenced at the date of the voluntary appearance and hence, that the suit was not prematurely brought.

2. MECHANIC'S LIEN--Husband Acting as Agent for Wife--Personal Liability. While the statutory power of a husband to create a mechanic's lien upon his wife's property (Civ. Code, § 649) does not extend to binding her personally for the price of material furnished to him under his own contract, she may constitute him her agent in fact and in that capacity he may create a personal liability on her part, as well as a lien upon her property.

Frans E. Lindquist, for the appellants; Eugene S. Quinton, of counsel.

H. W. Page, W. E. Atchison, C. J. Evans, Leonard S. Ferry, Thomas F. Doran, and Charles A. Magaw, for the appellees.

OPINION

BURCH, J.:

On April 14, 1909, Sutherin and Company filed a petition to foreclose a mechanic's lien, making Lela Diehl Chesney, the owner of the property, and her husband, F. O. Chesney, defendants. No summons was issued for these defendants, who were nonresidents of the state, and no attempt was made to serve them by publication, but on June 3, 1909, they entered their voluntary appearance. When the petition was filed a number of lien claimants were made parties defendant. These defendants answered and filed cross-petitions setting up their liens before the Chesneys appeared in the cause. The plaintiff's petition was filed, and several of the cross-petitions were filed, before the sixty-day period had elapsed in which the owner is not liable to action. This period had elapsed, however, before the Chesneys appeared. Issues were framed and after a trial all the liens were foreclosed. The owner claims that the action was prematurely brought by the plaintiff and by those defendants who filed their cross-petitions before the expiration of the sixty-day period.

An action is commenced by filing a petition and causing summons to be issued thereon. (Civ. Code, § 58.) A voluntary general appearance is equivalent to service. (Civ. Code, § 68.) For the purpose of avoiding the bar of the statute of limitations an action is deemed to be commenced at the date of the summons which is served. (Civ. Code, § 19.) The filing of the petition did not begin an action against the Chesneys. Neither did the filing of the cross-petitions. No summons having been issued, and no attempt having been made to serve them in any other way, no action was commenced against them until they voluntarily appeared. The situation was the same as if the petition and the various cross-petitions had been filed on June 3. The sixty-day period then having elapsed the action was not prematurely commenced.

The case of Insurance Co. v. Bullene, 51 Kan. 764, 33 P. 467, is cited, in which it was held that where certain defendants seek to enforce their demands against a codefendant the action will be deemed to be commenced against such codefendant when the answer setting up the demands is filed. In that case Bullene, Moore, Emery and Company brought suit to recover on a policy issued by the insurance company. Six months later the petition was amended to bring in a number of new parties who, three months afterward, filed cross-petitions claiming interests in the policy. The policy provided that suit must be commenced within six months after loss. Of course, the suit of the new parties against the insurance company dated from their first attempt to enforce their demands. If, however, these parties had been joined at the beginning, and had filed their cross-petitions, and nine months afterward the insurance company had been served with summons or had entered its voluntary appearance, their demands would have been barred.

The case of Wood v. Dill, 3 Kan.App. 484, 43 P. 822, is instructive. In an action to enforce a mechanic's lien the owner was served within the year allowed for the bringing of such suits. A mortgagee was not...