Long-Bell Lumber Co. v. Dettinger

The opinion of the court was delivered by Burch, J.: The action was one to foreclose a mechanic’s lien. The plaintiff was denied relief, and appeals. The land on which the improvement was erected belonged to Elsie Surplus, who was insane and was confined in the state hospital at Topeka. The improvement was contracted for by her husband and guardian, J. A. Surplus, who did not reside on the premises. The contractors were Dettinger and Rader, and they purchased material from the plaintiff. An agent of the plaintiff undertook to perfect a subcontractor’s lien. The lien statement misdescribed the land, and stated that the land was owned by J. A. Surplus in fee simple. The notice was directed to “J. A. Surplus, owner,” misdescribed the land, and was served personally on J. A. Surplus. When preparing for the trial of the case, the attorney for the plaintiff discovered the defects in the lien statement and notice. The facts were disclosed to the court in the opening statements of counsel, and the plaintiff’s attorney asked leave to amend the lien statement and the petition. The court was of the opinion the amendments would serve no purpose, because notice of lien had not been given the owner of the premises. The statute requires notice in writing of the filing of the lien statement to be served on the owner of the land. If the owner cannot with due diligence be found in the county,, a substitute for [115] personal service may be resorted to. After the filing by the claimant of an affidavit stating the facts, notice may be served on the occupant of the land, or if there be no occupant, by posting in a conspicuous place on the land. (Gen. Stat. 1915, § 7559.) J. A. Surplus was not owner of the land, either in his individual or in his representative capacity. Notice to him as owner was not notice which affected him as guardian, or which affected his ward or her estate, and the indispensable statutory requirement of notice to the owner was wanting. The petition contained a statement that the plaintiff furnished the material under a contract with the contractors, for themselves and as agents of J. A. Surplus, and prayed personal judgment against Surplus. The- petition as a whole, however, does no more than exhibit the relationships of owner, contractor, and subcontractor, necessary to a lien. Besides that, it appeared, in the colloquy between court and counsel, that what the plaintiff hoped- to do was to bind Surplus by some negotiations with him occurring after the lien statement had been filed, but which were not sufficient to create personal liability on his part. The judgment of the district court is affirmed.