O'Rourke v. Butte Lodge No. 14

Pemberton, C. J. We think the evidence in this case was ample to show that Harris was substituted, with the consent of all the parties in interest, for King in the contract by which King was to furnish the brick to construct the building in question by the Joyner Brothers. It is not necessary to treat the evidence upon this issue in detail. It is not disputed that the defendant lodge still owes the sum of $823.60 for brick used in the construction of the building mentioned in the pleadings. A stipulation in the record concedes this. The. chief contention seems to be as to who is entitled to this money — the plaintiff, whose testator furnished the brick, or A. A. McMillan et al., the attaching creditors of King. The principal error assigned and contended for on this [544] appeal is that the defendants Joyner Brothers were not personally served with summons in the case. They were served by publication of summons. Appellant lodge contends that, as they were necessary parties to the suit, the plaintiff could have no judgment against it, the defendant lodge, foreclosing his lien until a valid judgment was first had against them for the amount found to be due from them for the brick. W e think this is a mistaken view of the law. There is but one cause of action stated in the complaint. This is the indebtedness due from the Joyner Brothers to Harris for the brick used in the construction of the building. But there are two remedies given by law: One a personal judgment against the Joyner Brothers for the amount of such indebtedness; the other a -proceeding in rem under the statute, equitable in its character, against the building in the construction of which the brick were used. The plaintiff has the right under the law to pursue and invoke both these remedies in one suit. This is in accordance with the views of this court, as announced in American Saving and Loan Association v. Burghardt, recently decided, and reported in 48 Pac. 391. To hold that because plaintiff is unable to procure personal service upon the Joyner Brothers, who were the original contractors in this case, and for that reason is unable to recover a valid personal judgment against them, he is thereby deprived of his statutory remedy in rem against the building, we think so unjust and inequitable as to find no support in authority or reason. Certainly, our codes do not warrant such a construction, in our opinion. If such be the law, then all the owner of a building has to do is to get the contractor out of the state, so that he cannot be personally served with summons, to defeat the claims of all laborers and material men under the mechanic’s lien laws of the state. This proceeding to foreclose the lien against the building being equitable in its character, the court had authority to set aside the findings of the jury, and render judgment for the plaintiff, notwsthstanding the verdict, if the findings and verdict were not authorized by the evidence. In this case the [545] comrt was fully justified in its action. We think there is but litt le merit in this appeal. The judgment and order appealed frqm are affirmed. Affirmed. Hunt and Buck, JJ., concur.