Flake v. Central Hardware Co.

Mayes, J., delivered tbe opinion of tbe court. This is a proceeding commenced by tbe Central Hardware-Company for the purpose of enforcing a materialman’s lien on-a certain building erected by one Guinn on property belonging-to Mrs. Laura L. Flake. Tbe contract made by Guinn for tbe erection of this building was made with Henry L. Flake, the-husband, and no written consent for tbe erection of this building on her property was ever obtained from tbe wife. This being-tbe case, tbe lien is sought to be enforced only as against the-building, and not tbe land itself. Tbe Central Hardware Company sold certain material to Guinn to go into- tbe construction’ of this bouse, which be failed to pay for, whereupon notice was-served on Henry L. Flake under section 3074, Code 1906. After stop notice was served on Henry L. Flake as required by the1 above section, this petition was filed, seeking to condemn the building alone for tbe debt -due by Guinn to tbe hardware company. It appears from the record that tbe proceeding was instituted" against Flake alone, and neither Guinn, tbe contractor who bought tbe material, nor Mrs. Laura L. Flake, who owned tire' [843] land on wbicb was situated tbe building, were made parties. It was only upon tbe trial tbat it developed tbat tbe land on which tbe building was situated belonged to Mrs. Laura L. Flake; but. sbe was not tben made a party to it. All these matters were objected to on tbe motion for a new trial; but even if tbey bad been, both became necessary parties to tbe proceeding, and no-judgment'could be properly entered enforcing tbis lien until both bad ben made parties to1 tbe proceeding. Section 3063,. Code 1906, is specific in its requirement tbat “all persons having interest in tbe controversy, and all persons claiming liens on tbe same property, by virtue of tbis chapter shall be made parties to tbe suit; and should any necessary or proper party be omitted,, be may be brought in by amendment, on bis own application or tbat of any other party interested; and claims of several’parties having liens on tbe same property may be joined in tbe same action.” Both were necessary parties to tbe proceeding to enforce any lien against tbe building. Guinn is a necessary party, for tbe reason tbat tbe debt forming tbe basis of tbe lienor’s right, is a debt due Guinn by Flake, if nothing should be due tbe hardware company by Guinn, and Guinn should be given an opportunity to contest tbis claim. Tbe building sought to be condemned is on tbe land of Mrs. Flake, and it is due her tbat sbe is given an opportunity to be beard before tbat building, now on her land and presumably her property, shall be condemned to be sold. Certainly, under these conditions, both these persons should have been made parties, and because tbey were not tbe judgment is reversed and cause remanded.