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representative, in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt.

Derivation: Code Civil Procedure, § 3399.

§ 42. Enforcement of a lien under contract for a public improvement.

A lien for labor done or materials furnished for a public improvement may be enforced against the funds of the state or the municipal corporation for which such public improvement is constructed, to the extent prescribed in article two of this chapter, and against the contractor or sub-contractor liable for the debt, by a civil action, in the same court and in the same manner as a me chanic's lien on real property. (Repealed by L. 1911, ch. 450; re-enacted by L. 1911, ch. 873, in effect Oct. 6, 1911.)

Derivation: Code Civil Procedure, § 3400.

§ 43. Action in a court of record; consolidation of actions.

The provisions of the code of civil procedure, relating to actions for the foreclosure of a mortgage upon real property, and the sale and the distribution of the proceeds thereof apply to actions in a court of record, to enforce mechanics' liens on real property, except as otherwise provided in this article. If actions are brought by different lienors in a court of record, the court in which the first action was brought, may, upon its own motion, or upon the application of any party in any of such actions, consolidate all of such actions.

Derivation:

Code Civil Procedure, § 3401.

§ 44. Parties to an action in a court of record.

In an action in a court of record the following are necessary parties defendant:

1. All lienors having liens against the same property or any part thereof.

2. All other persons having subsequent liens or claims against the property, by judgment, mortgage or otherwise, and

3. All persons appearing by the records in the office of the county clerk or register to be overseers of such property or any part thereof. Every defendant who is a lienor shall, by answer in the action, set forth his lien, or he will be deemed to have waived the same, unless the lien is admitted in the complaint, and not contested by another defendant. Two or more lienors having liens upon the same property or any part thereof, may join as plaintiffs. 4. The state, in the same manner as a private person, when the

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lien is one filed against funds of the state for which public improvement is constructed. In such a case, the summons must be served upon the attorney-general, who must appear in behalf of the people.

Derivation: Code Civil Procedure, § 3402.

§ 45. Equities of lienors to be determined.

The court may adjust and determine the equities of all the parties to the action and the order of priority of different liens, and determine all issues raised by any defense or counterclaim in the action. Derivation: Code Civil Procedure, § 3403.

§ 46. Action in a court not of record.

If an action to enforce a mechanic's lien against real property is brought in a court not of record, it shall be commenced by the personal service upon the owner, anywhere within the state, of a summons and complaint verified in the same manner as a complaint in an action in a court of record. The complaint must set forth substantially the facts contained in the notice of lien, and the substance of the agreement under which the labor was performed or the materials were furnished. The form and contents of the summons shall be the same as provided by the code of civil procedure for the commencement of an action upon a contract in such court. The summons must be returnable not less than twelve nor more than twenty days after the date of the summons, or, if service is made by publication, after the day of the last publication of the summons. Service must be made at least eight days before the return day.

Derivation: Code Civil Procedure, § 3404.

§ 47. How summons served, when personal service cannot be made. If personal service of the summons cannot be made upon a defendant in an action in a court not of record, by reason of his absence from the state, or his concealment therein, such service may be made by leaving a copy thereof at his last place of residence and by publishing a copy of the summons once in each of three successive weeks in a newspaper in the city or county where the property is situated.

Derivation: Code Civil Procedure, § 3405.

§ 48. Proceedings on return of summons; answer; judgment by default.

At the time and place specified in the summons for the return thereof, in a court not of record, issue must be joined, if both

parties appear, by the defendant filing with the justice a verified answer, containing a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof; or any other matter constituting a defense to the lien or to the claim upon which it is founded. If the defendant fail to appear on the return-day, on proof by affidavit of the service of the summons and complaint, judgment may be rendered for the amount claimed, with costs.

Derivation: Code Civil Procedure, § 3406.

§ 49. Issue, how tried; judgment.

If issue is joined in such action in a court not of record, it must be tried in the same manner as other issues in such court, and judgment entered thereon, which shall be enforced, if for the plaintiff, in the manner provided in the following section. If for the defendant, in the same manner as in an action on contract in such

court.

Derivation: Code Civil Procedure, § 3407.

§ 50. Execution.

Execution may be issued upon a judgment obtained in an action to enforce a mechanic's lien against real property in a court not of record, which shall direct the officer to sell the title and interest of the owner in the premises, upon which the lien set forth in the complaint existed at the time of filing the notice of lien.

Derivation: Code Civil Procedure, § 3408.

§ 51. Appeals from judgments in courts not of record.

An appeal may be taken from such judgment rendered in a court not of record, according to the provisions of the code of civil procedure, regulating appeals from judgments in actions on contract in such courts.

Derivation: Code Civil Procedure, § 3409.

§ 52. Transcripts of judgments in courts not of record.

When a judgment is rendered in a court not of record, the justice or judge of the court in which it is tried, or other person authorized to furnish transcripts of judgments therein, shall furnish the successful party a transcript thereof, which he may file with the clerk of the county with whom the notice of lien is filed. The filing of such transcript has the same effect as the filing of a transcript of any other judgment rendered in such courts.

Derivation: Code Civil Procedure, § 3410.

§ 53. Costs and disbursements.

If an action is brought to enforce a mechanic's lien against real

property in a court of record, the costs and disbursements shall rest in the discretion of the court, and may be awarded to the prevailing party. The judgment rendered in such an action shall include the amount of such costs and specify to whom and by whom the costs are to be paid. If such action is brought in a court not of record, they shall be the same as allowed in civil actions in such court. The expenses incurred in serving the summons by publication may be added to the amount of costs now allowed in such court.

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Derivation: Code Civil Procedure, § 3411.

§ 54. Judgment in case of failure to establish lien.

If the lienor shall fail, for any reason, to establish a valid lien in an action under the provisions of this article, he may recover judgment therein for such sums as are due him, or which he might recover in an action on a contract, against any party to the action. Derivation: Code Civil Procedure, § 3412.

§ 55. Offer to pay money into court, or to deposit securities in discharge of the lien..

At any time after an action is brought under the provision of this article, the owner may make and file with the clerk with whom the notice of lien is filed, if in a court of record, and if in a court not of record, with the court, an offer to pay into court the sum of money stated therein, or to execute and deposit sccurities which he may describe, in discharge of the lien, and serve upon the plaintiff a copy of such offer. If a written acceptance of the offer is filed. with such clerk, or court, within ten days after its service, and a copy of the acceptance is served upon the party making the offer, the court, upon proof of such offer and acceptance, may make an order, that on depositing with such clerk, or court, the sum so offered, or the securities described, the lien shall be discharged, and that the money or securities deposited shall take the place of the property upon which the lien existed, and shall be subject to the lien. If the offer is of money only, the court, on application and notice to the plaintiff may make such order, without the acceptance of the offer by the plaintiff. If such action is brought in a court not of record, such order may be made by the county court of the county where such action is brought upon notice, and upon filing such order and depositing such sum of money or securities with the county clerk of such county, he shall forthwith discharge said notice of lien, by writing upon the margin of the record thereof, the words "discharged by payment." Money or securities de

posited upon the acceptance of an offer pursuant to this section shall be held by the clerk or the court until the final determination of the action, including an appeal.

Derivation: Code Civil Procedure, § 3413.

§ 56. Preference over contractors.

When a laborer, subcontractor or material man shall perform labor or furnish materials for an improvement of real property or for a public improvement, for which he is entitled to a mechanic's lien, the amount due to him shall be paid out of the proceeds of the sale of such property or out of the moneys of the state or municipal corporation applicable to the construction of the public improve、 ment, under any judgment rendered pursuant to this article, in the order of priority of his lien, before any part of such proceeds is paid to the person for whom he has performed such labor or furnished such materials. If several notices of lien are filed for the same claim, as where the contractor has filed a notice of lien, for the services of his workmen, and the workmen have also filed notices of lien, the judgment shall provide for but one payment of the claim which shall be paid to the parties entitled thereto in the order of priority. Payment voluntarily made upon any claim filed as a lien shall not impair or diminish the lien of any person except the person to whom the payment was made. (Amended by L. 1916, ch. 507, in effect July 1, 1916.)

Derivation: Code Civil Procedure, § 3414.

§ 57. Judgment may direct delivery of property in lieu of money. If the owner has agreed to deliver bills, notes, securities or other obligations or any other species of property, in payment of the debt upon which the lien is based, the judgment may direct that such substitute be delivered or deposited as the court may direct, and the property affected by the lien cannot be sold, by virtue of such judgment, except in default of the owner to so deliver or deposit within the time directed by the court.

Derivation: Code Civil Procedure, § 3415.

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