Colorado § 38-22-113 - Hearing - judgment - summons - defense.

§ 38-22-113. Hearing - judgment - summons - defense.

(1) The court, whenever the issues in such case are made up, shall advance such cause to the head of the docket for trial and may proceed to hear and determine said liens and claims or may refer the same to a magistrate to ascertain and report upon said liens and claims and the amounts justly due thereon.

(2) Judgments shall be rendered according to the rights of the parties. The various rights of all the lien claimants and other parties to any such action shall be determined and incorporated in one judgment or decree. Each party who establishes his claim under this article shall have judgment against the party personally liable to him for the full amount of his claim so established, and shall have a lien established and determined in said decree upon the property to which his lien has attached to the extent stated in this section.

(3) Proceedings to foreclose and enforce mechanics' liens under this article are actions in rem, and service by publication may be obtained against any defendant therein in a manner as provided by law, and personal judgment against the principal contractor or other person personally liable for the debt for which the lien is claimed shall not be requisite to a decree of foreclosure in favor of a subcontractor or materialman.

(4) In such proceedings, it shall be an affirmative defense that the owner or some person acting on the owner's behalf has paid an amount sufficient to satisfy the contractual and legal obligations of the owner, including the initial purchase price or contract amount plus any additions or change orders, to the principal contractor or any subcontractor for the purpose of payment to the subcontractors or suppliers of laborers or materials or services to the job, when:

(a) The property is an existing single-family dwelling unit;

(b) The property is a residence constructed by the owner or under a contract entered into by the owner prior to its occupancy as his primary residence; or

(c) The property is a single-family, owner-occupied dwelling unit, including a residence constructed and sold for occupancy as a primary residence. This paragraph (c) shall not apply to a developer or builder of multiple residences except for the residence that is occupied as the primary residence of the developer or builder.

Source: L. 1899: p. 273, § 13. R.S. 08: § 4037. C.L. § 6454. CSA: C. 101, § 27. CRS 53: § 86-3-13. C.R.S. 1963: § 86-3-13. L. 87: (4) added, p. 1336, § 2, effective May 25. L. 91: (1) amended, p. 366, § 42, effective April 9. L. 2000: IP(4) amended, p. 210, § 10, effective August 2.

Cross references: For service of summons by publication, see C.R.C.P. 4(g) and 4(h).

ANNOTATION

I. General Consideration.

II. Judgments.

I. GENERAL CONSIDERATION.

Foreclosure action addresses equity. An action to foreclose a mechanic's lien is addressed to the equity side of a court. Am. Irrigation Co. v. Fadenrecht, 30 Colo. App. 28, 489 P.2d 1060 (1971).

Right to a materialman's lien is based upon considerations of natural justice, and it is predicated upon the equitable considerations that one who has enhanced the value of property by attaching thereto or having incorporated therein his material shall have a lien therefor. Jackson v. A.B.Z. Lumber Co., 155 Colo. 33, 392 P.2d 288 (1964).

Article contemplates speedy determination of claims, to the end that mechanics' lienors will not have to wait indefinitely for their money, or for experiments in legal procedure. Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929); Tiger Placers Co. v. Fisher, 98 Colo. 221, 54 P.2d 891 (1936).

No prejudice resulted from claimant's failure to serve copy of answer. In a mechanic's lien foreclosure action where a defendant lien claimant failed to serve a copy of its answer and counterclaim on defendant owners, and ample time existed before trial for responsive pleadings thereto, no prejudice to the substantial rights of any litigant to the action, including the right to a speedy disposition of causes of this nature, can occur by permitting service of such answer and counterclaim on the owner defendants. Gould & Preisner, Inc. v. District Court, 149 Colo. 484, 369 P.2d 554 (1962).

Applied in Bradbury & Co. v. Butler & Son, 1 Colo. App. 430, 29 P. 463 (1892); Davis v. John Mouat Lumber Co., 2 Colo. App. 381, 31 P. 187 (1892); Barnes v. Colo. Springs & C.C.D. Ry., 42 Colo. 461, 94 P. 570 (1908); Pike v. Empfield, 21 Colo. App. 161, 120 P. 1054 (1912).

II. JUDGMENTS.

Personal judgment rendered for amount due. In an action to foreclose a mechanic's lien, a personal judgment may be rendered for the amount due, notwithstanding no right to a lien exists. Cannon v. Williams, 14 Colo. 21, 23 P. 456 (1890); Finch v. Turner, 21 Colo. 287, 40 P. 565 (1895).

Saving clause in decree held valid. Saving clause in a decree providing that certain trust deed holders should not be affected by its terms, is valid. Stark Lumber Co. v. Keystone Inv. Co., 92 Colo. 259, 20 P.2d 306 (1933).

Decree awarding lien fails in part. A decree awarding a lien, in part for things not the subject of a lien, fails only to the extent to which the allowance is improper. Horn v. Clark Hdwe. Co., 54 Colo. 522, 131 P. 405 (1913).