Hardman Lumber Co. v. Blanch

' The opinion of the court was delivered by Marshall, J.: The plaintiff commenced this action to foreclose a mechanic’s lien. Judgment was rendered in favor of the defendants W. F. Conner and Emma S. Conner on an objection to the introduction of evidence under the amended petition of the plaintiff, and it appeals. For building material sold to a subcontractor to be used in erecting, altering, and repairing a dwelling house on lots 16, 17, 18, 19, 20, 22, 24, in block 2 of Sanford and Crawford’s addition to Hill City, the plaintiff claimed a mechanic’s lien on all that property and filed a lien statement on all of it except lot 20. The lien statement named W. F. Conner as owner of the property, and contained all the information required by section 7558 of the General Statutes of 1915. The petition contained all that was necessary to a foreclosure of the lien, and contained other allegations, as follows: .“Plaintiff further shows that in the said statement so filed as aforesaid the name of the owner of said lands and lots was stated as W. F. Conner, that the statement of such person as the owner was an error as to lots Í6, 18, 20, 22 and 24 of said block two, the legal title to said last named lots, being in the name of Emma S. Conner the wife of W. F. Conner and the legal title to lots 17 and 19 being in the name of W. F. Conner, defendant herein and the husband of. Emma S. Conner. That lots 16, 18, 20, 22 and 24 in Block 2 of Sanfords and Crawfords Addition to Hill City, Kansas, are adjacent tracts and constitute one compact tract of land; that lot 20 of said tract was by error omitted from the statement for a lien filed in the office of the clerk of the District Court of Graham County, [461] Kansas; that the building and the improvement herein set out and for which materials were furnished by plaintiff was upon all of said tracts or lots of land.” An amendment to the petition alleged: “That at the time of the execution of the said written contract the legal title to lots 16, 18, 20, 22, and 24 in Block Two in Sanfords and Crawfords Addition to the town, now City of Hill City, Kansas, was in the name of Emma Conner, and the title to lots seventeen and nineteen of said block was in the name of W. F. Conner, but at that time the said W. F. Conner and Emma S. Conner were husband and wife and the said W. F. Conner then was and now is and at all times herein mentioned has been the duly authorized agent and the husband of the said Emma S. Conner, and duly authorized as such agent to transact all business herein mentioned. That the said two lots 17 and 19 were inclosed with the said lots 16, 18, 20, 22 and 24 hereinbefore described and all of said lots are subject' to and liable for the payment of the claim and account of the plaintiff as in its petition described and set out.” The petition asked for an amendment of the lien statement so as to correct the mistakes therein, and asked for a foreclosure of the lien. It is inferentially but not clearly stated in the abstract 'that before any evidence was introduced W. F. Conner and Emma S. Conner each objected to the introduction of any evidence under the petition for the reason that it did not state facts sufficient to constitute a cause of action against either of them, and the ruling on that objection was reversed. After some evidence had been introduced, those objections were sustained, and the action was dismissed as to W. F. Conner and Emma S. Conner. 1. The principal question presented by the appeal is, Did the petition as amended state facts sufficient to constitute a cause of action against W. F. Conner and Emma S. Conner? One argument made by the appellees against the petition is that the lien statement did not allege that W. F. Conner and Emma S. Conner were husband and wife. The statement did not contain such an allegation, but the statute does not require that the statement shall contain it.. The statute requires “a statement setting forth the amount claimed and the items thereof, as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property subject to the lien.” (Gen. Stat. 1915, § 7558.) The ' statement contained all that the statute required. It was not [462] necessary for the lien statement to recite that W. F. Conner and Emma S. Conner were husband and wife. The petition alleged that W. F. Conner and Emma S. Conner were husband and wife. Section 7557 of the General Statutes of' 1915 provided that “any person who shall under contract with the owner of any tract or piece of land, or with a trustee, agent, husband or wife of such owner, perform labor or furnish material for the erection, alteration or repair of any building, . . . shall have a lien upon the whole of said piece or tract of land.” All that was necessary was that the petition allege the relation that existed between W. F. Conner and Emma S. Conner. 2. It is argued by the appellees that the plaintiff did not request an amendment of the lien statement. In answer to this argument it must be said that the petition set out the errors in the lien statement and asked that they be corrected. On the objection to the introduction of evidence the court must have examined the petition or in some way must have been informed concerning its allegations and must have known that it contained a request for an amendment of the lien statement. The statute provides that “in case of action brought, any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed.” (Civ. Code, § 653, Gen. Stat. 1915, § 7561.) In furtherance of justice the lien statement should have been amended so as to correctly set out the name of the owner of the property. There was, however, a mistake in the description of the property, but it was so described that no one could be misled thereby. Without an amendment of the lien statement, the petition as first filed stated a cause of action against W. F. Conner and Emma S. Conner, but that cause of action might have been ineffectual because of the errors in the lien statement. That could not be ascertained until after the introduction of evidence, or after admissions made in the trial statement which would have taken the place of evidence. With an amendment of the statement in the manner requested by the petition as first filed, and by the amendments thereto as afterward filed, a cause of action wa‘s stated which, if judgment had been rendered thereon, could have been enforced against all the property. [463] 3. It is claimed that lots 16, 18, 20, 22, and 24 are on one side of an alley; that lots 17 and 19 are across the alley from those first named; and that therefore all the property cannot be subjected to the lien. If the entire property was used by the Conners as one property, although the alley ran through it, the lien would properly attach to the whole of the property. If the two tracts were used as separate properties, and the improvements made were all on one of them, the lien would attach only to that property on which the improvements were made. While not directly in point the following authorities support these rules: (Mulvane v. Lumper Co., 56 Kan. 675, 44 Pac. 613; Lumber Co. v. Smith, 84 Kan. 190, 114 Pac. 372; Lehmer v. Horton, 67 Neb. 574; 27 Cyc. 224-225; 18 R. C. L., 947-952.) It was error to sustain the objection to the introduction of evidence, and for that error the judgment is reversed. The cause is remanded for trial with directions to permit the amendment of the lien statement if the evidence should warrant such amendment. •Porter, J., dissents from the third paragraph of the syllabus and the corresponding portion of the opinion.