October 1, 2012

Fox v. Somerset Odd Fellows Hall & Auditorium Co., et al., Pulaski, 1900



54 S.W. 835; 1900 Ky. LEXIS 332; 21 Ky. L. Rptr. 1272

January 18, 1900, Decided

PRIOR HISTORY:  [**1] Appeal from circuit court, Pulaski county.


COUNSEL: Curd & Smith, for appellant.

O. H. Waddle, for appellees.




 [*835]  HOBSON, J. - Appellee, the Somerset Odd Fellows Hall & Auditorium Company, on May 19, 1896, entered into a written contract with the Collier Bridge Company to erect for it a building on a lot in Somerset for the sum of $12,120. The Collier Bridge Company on May 23, 1806, made a contract with appellant, Fox, to furnish the brick for the building. He began furnishing the brick on August 19, 1896, and ceased furnishing them in November, 1896. On March 10, 1897, he notified the auditorium company in writing that he had a claim of $490.21 against the Collier Bridge Company for material furnished in the erection of the building, and on the 12th of March he duly filed his claim in the county clerk's office. On the 14th day of October, 1897, appellant, Fox, filed this suit against the auditorium company, the Collier Bridge Company, and others, to enforce a mechanic's lien on the property. The auditorium company  [**2] filed a demurrer to the petition, which was sustained, and, he failing to plead further, his petition was dismissed.

The ground of the demurrer was that the contracts being made before the act approved March 21, 1896, took effect, the rights of the parties must be determined by the law in force at the time the contracts were made,  [*836]  and that, appellant not haying filed his claim with, the county clerk within the time then required, he lost his lien. The act approved February 25, 1893 (Sess. Acts 1891-93, p. 505), gave a subcontractor or material man a lien to the extent of the indebtedness of the owner to the contractor at the time he received notice of the claim, and required the claimant to file with the county clerk, within 60 days after he ceased to labor or furnish materials, a statement of the amount due him, with a description of the property intended to be covered by the lien. This act was amended by the act approved March 21, 1896, which took effect June 21st. thereafter. By the amendatory act the section which limited the lien of the subcontractor to the amount due from the owner to the contractor at the time he received notice in writing of the claim was repealed, and the  [**3] words "sixty days" in the section requiring the claim to be filed with the county clerk were stricken out, and "six months" substituted in lieu thereof. It is insisted for appellee that the rights of the parties must be determined solely by the original act, and that, if the amendatory act has any application, it is unconstitutional. It is alleged in the petition that, at the time the notice was given of his claim by appellant to appellee, appellee owed the contractor more than $2,500. It follows, therefore, that under either act appellant has a lien, if he did not lose it by not filing it with the county clerk in time; for by the original act he was given a lien to the-extent of its indebtedness to the contractor at the time he served his notice on appellee, and, as more than the amount coming to him was then due to the contractor, he would be entitled to a lien under that act; and by the amendatory act it was not intended, at least, to limit the protection which the subcontractor or material man then enjoyed, as between him and the owner. The material question in the case, therefore, is, did appellant lose his lien by not filing it With the county clerk within 60 days after he ceased  [**4] to labor or furnish material as provided in the original act? It will be seen that appellant ceased furnishing the brick in November, 1896. It was incumbent on him then to file his claim-with the clerk within the time allowed by law. But the act of March 21, 1896, had then taken effect. This act, as stated, struck out the words "sixty days" from the original act, and inserted in lieu of them "six months." The law, therefore, which was then in force, gave him 6 months to file his claim with the county clerk. It was competent for the legislature to extend the time allowed for this purpose. Remedial statutes of this kind have always been upheld. Cooley, Const. Lim. side page 287. In Montgomery v. Allen (Ky.) 53 S. W. 813, it was expressly held by this court that the time for filing claims then in force was extended, and that such claims were valid if filed in 6 months. Appellant's claim having. been filed in 6 months, his lien was not lost. As it is conceded that the owner was in debted to the contractor in a greater amount than necessary to cover the claim of appellant, it is unnecessary for us to determine the question, so ably discussed by counsel for appellee, as to what the rights  [**5] of the parties would be in case the owner of the property had paid the contractor in full, without notice of the claim of the subcontractor. The judgment of the court below is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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