Crosby v. Winter

7 N.W. 89, 54 Iowa 652

• Court: Supreme Court of Iowa
• Decided: October 22, 1880
• Status: Published

Opinion

Seevers, J.

i. judgment: ues o?fiienparties. The mortgage was filed for record on the dth day of April, 1876, and the answer of Woodford & Wheeler alleged that on the 5th day of January, 1876, they made a contract with the defendant Winter to furnish lumber, for a dwelling-house, granary and fence to be erected on the mortgaged jn’emises, and they commenced the delivery of the lumber, and completed the same October Í2, 1876. Whether the delivery was commenced before the mortgage was filed for record does not clearly aj>pear. The value of the lumber so delivered was alleged to be $719.06.'

On October 30,1876, the statement required by law claiming a mechanic’s lien was duly filed, and in October, 1877, the same was duly established and foreclosed. The plaintiff was not made a party to the action.

The plaintiff among other things moved the court to require defendants "Woodford & Wheeler to set fort an “itemized account of lumber and building material, * * * with the character and quality of such material, the time of sale and delivery, and the value thereof.” The motion was overruled. It should have been sustained. The plaintiff had the right to contest the amount claimed to be due, and also whether the lumber had been delivered, in whole or in part, before the mortgage was filed for record.

The fact a judgment establishing and foreclosing the mechanic’s lien against Winter had been obtained should not be allowed to prejudice the plaintiff in any way. Eor in substance Woodford & Wheeler are seeking to have their lien declared to be superior to the mortgage in this action. Before this can be done the lien must be established, and declared by the judgment of the court. It cannot be established until the amount due is ascertained. If the plaintiff had been made a party to the action brought to establish and foreclose the mechanic’s lien, he without doubt could have contested the amount due, and whether the lien was superior to the mortgage. By no act or laches of his has such right been forfeited, and it will not do to say the party seeking to foreclose the lien can, by dividing his action as to parties, obtain a substantial advantage.

It is urged the itemized account was filed in the action brought to enforce the lien, and that it is now a matter of record, and, therefore, unnecessary to be set forth in this action. The reply to this may be made that only the issues in the action being tried can be litigated therein, and under the pleadings and theory of the court below the matters aforesaid could not be litigated in this action. The holding of the District Court, as we understand, amounted to this, that the judgment establishing and foreclosing the mechanic’s lien was ¿conclusive as to the amount due.

The other questions discussed by counsel it is unnecessary to determine, and we do not do so. It is doubtful whether they are material, except the question as to the statute of limita^ tions, and, without positively committing ourselves, we deem it proper to say that under this record the plaintiff cannot avail himself of such defense.

Reversed.