Citation Numbers: 42 Kan. 370
Judges: Clogston
Filed Date: 7/15/1889
Status: Precedential
Modified Date: 9/8/2022
Opinion by
This was an action originally brought by Hamilton Irish, plaintiff in error, against Ed. Foulks and Robert M. Blair, to foreclose a mechanics’ lien upon lot 18 in Maxwell’s Addition to the town of Stafford, Kansas. At the trial of the action, Foulks made default, and Blair answered setting up that he was the owner of the lot in controversy, and that he had never authorized the purchase of the lumber and material claimed in plaintiff’s petition. Judgment was rendered on default against Foulks and in favor of Blair, denying the plaintiff a lien upon the lot in question. This judgment was rendered in October, 1884. After the rendition of this judgment and before any steps had been taken to set it'aside, Blair sold the lot to W. E. Gregg, and Gregg afterward sold it to Price and Price, the defendants in error herein. In April, 1885, plaintiff filed a petition in the district court praying for a new trial in the action against Foulks and Blair, and in June, 1885, the petition was heard by the district court — Foulks again making default. Upon
Plaintiff now insists that the court erred in refusing to render judgment establishing a lien upon the property, and bases that claim upon the fact that the statute gave him a year in which to file a petition to set aside the judgment; and he insists that during the pendency of that year defendants could obtain no right or interest in the property that would interfere with his lien. This question need not be determined. The plaintiff failed to establish his lien against Blair in the first instance, while Blair was the owner of the property, and as long as that judgment stands unreversed it will protect his grantees, the defendants; and as no effort was made by the plaintiff to have that judgment reversed, he cannot complain because the court refused to establish the lien against the property. While we are free to say that upon the record as brought here, plaintiff perhaps ought to have had a lien in the first instance, yet the court on the evidence held against it, and that judgment is binding and conclusive, and plaintiff has no cause of complaint here.
By the Court: It is so ordered.