Tilly v. Bauman
| Decision Date | 01 February 1932 |
| Docket Number | 30872 |
| Citation | 139 So. 762,174 La. 71 |
| Court | Louisiana Supreme Court |
| Parties | TILLY v. BAUMAN |
Appeal from First Judicial District Court, Parish of Caddo; Robert Roberts, Judge.
Action by R. D. Tilly against H. A. Bauman, in which L. E. McNatt and others intervened. From the judgment, plaintiff appeals.
Judgment amended, and, as amended, affirmed.
Edward Barnett, of Shreveport, for appellant.
J. Fair Hardin and Ben E. Coleman, both of Shreveport, for appellees L. E. McNatt and General Electric Supply Corporation.
Dickson & Denny, of Shreveport, for appellees Shreveport Tile Co., W C. Rider Lumber Co., Sunset Plumbing Co., and Washburn Land Co.
Plaintiff foreclosed on a mortgage note signed by one Bauman, owner of certain real estate in the city of Shreveport. Bauman had contracted with one White to build upon said property. Plaintiff advanced the money to the builder, and held the note as security for his advancements. The property was afterwards transferred to the Washburn Land Company. The contractor defaulted in the building, leaving numerous unpaid liens upon it. Washburn Land Company attempted to bring concursus proceedings. Plaintiff was not satisfied to await the outcome of those proceedings, and proceeded to do that which he had a right to do, to wit, to foreclose on his mortgage.
The mortgage was executed and recorded before the building was started, and therefore primes all claims upon said building except claims for labor done. Act 298 of 1926, § 12.
This being a foreclosure proceeding with opposition to the distribution of the proceeds of the property sold, and not a concursus proceeding, the Washburn Land Company which attempted to bring concursus proceedings, but which did not succeed on account of the filing of this suit, is not entitled to attorney's fees.
The fact that plaintiff, who was advancing money to the builder and might have advanced it all at once (Cf. Hortman-Salmen Co. v. White, 168 La. 1057, 123 So. 711), entered into some stipulation with the builder by which he was able to exercise some supervision and control over the way in which the money was to be expended, cannot in any way prejudice his rights. By doing so, he was acting in the interest of all parties, his own as well as that of any other persons who might subsequently acquire rights upon the property.
The trial judge properly rejected the claim of the Rider Lumber Company, which was exclusively a lien for materials furnished and not for labor, and therefore did not prime plaintiff's mortgage.
He inadvertently allowed the Shreveport Tile Company the sum of $ 52, for their claim was for "labor and material," without separation of items. So it was impossible to distinguish between its claim for labor which primes plaintiff's mortgage, and its claim for materials which does not. This claim should have been rejected, and the judgment of the lower court will be amended accordingly.
The trial judge allowed the claim of the Green Electric Company (General Electric Supply Corporation subrogee), for the sum of $ 667. The evidence shows that the Green Electric Company was a subcontractor, and that the $ 667 herein claimed by it and allowed by the trial judge was for labor done upon the building for which the subcontractor paid.
The trial judge allowed the claim of L. E. McNatt, who had the subcontract for plastering the building, which claim amounted to $ 834.95. The evidence shows that McNatt did with his own hands $ 442 worth of labor on the building. The other $ 392.95 represents the labor done by his workmen, whom...
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Martin v. Louisiana Farm Bureau Cas. Ins. Co.
...The only case which seemingly departed from this steady stream is a 1932 decision rendered by the Supreme Court in Tilly v. Bauman, 174 La. 71, 139 So. 762. Interestingly, the Supreme Court in Pringle refused to follow Tilly and noted "that decision [stood] alone in the jurisprudence and [h......
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Pringle-Associated Mortg. Corp. v. Eanes, PRINGLE-ASSOCIATED
...to the rights of their respective laborers when they paid their wages. They cite, as controlling, our 1932 decision in Tilly v. Bauman, 174 La. 71, 139 So. 762, where it was held that subcontractors who have paid their laborers become legally subrogated to the laborers' liens where, as here......
- Pitcher v. United Oil & Gas Syndicate, Inc.
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Franklin Life Ins. Co. v. Hill
...said building, except claims for labor, which have been recorded in the manner and within the time prescribed by law. See Tilley v. Bauman, 174 La. 71, 139 So. 762. In fact [LSA-] R.S. 9:4801 expressly provides "The claim for wages of a laborer, for the work actually performed by him on any......