Wichita Sash & Door Co. v. Weil

Citations

• 80 Kan. 606
• 103 P. 1003
• 1909 Kan. LEXIS 122

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Judgment 'by Default — Vacation—Retrial„ In an action by a subcontractor to recover a personal judgment against the contractor and to foreclose a- mechanic’s lien on the building and premises of the owner, a judgment by default was first rendered against the contractor and the foreclosure of the lien was adjudged. Subsequently the owner moved for the vacation of the judgment and the motion was allowed, but the personal judgment against the contractor was not formally set aside. No defense was made by the contractor and the court proceeded to try the case as if the entire judgment had been vacated, and upon the trial allowed the owner to contest the amount due and the extent of the lien to be adjudged against his property. Held, that the court should have formally set aside the personal judgment against the contractor, but that it was not prejudicial error to try the question of the amount due to the subcontractor without having made such formal order.</p> <p>2. -Action by Subcontractor — Defense by Owner — Counter-claim. In an action brought by a subcontractor, uwhere the original contractor does not defend against the claim, the owner may defend, and for the purpose of ascertaining the amount due and reducing the extent of the lien to be established against his premises may, allege and prove damages resulting from defects and omissions in the work performed or the material furnished by the subcontractor.</p> <p>3. - Tender — Withdrawal—Discharge of Lien. Where the owner asks for the withdrawal of an amount of money which he had tendered and paid into court to meet the claim of the subcontractor and which the subcontractor declined to accept, and the court grants his request and permits the withdrawal of the deposit, such tender and deposit can not be regarded as effecting a discharge of a lien properly perfected.</p>