Colorado § 38-22-124 - Other remedies not barred.

§ 38-22-124. Other remedies not barred.

No remedy given in this article shall be construed as preventing any person from enforcing any other remedy which he otherwise would have had, except as otherwise provided in this article. In case of two or more owners, contractors, or subcontractors interested in the same contract, the rule of procedure shall be the same as in the case of one such.

Source: L. 1883: p. 236, § 31. G.S. § 2161. R.S. 08: § 4048. C.L. § 6465. CSA: C. 101, § 38. CRS 53: § 86-3-24. C.R.S. 1963: § 86-3-24.

ANNOTATION

The remedy provided by article is cumulative, as the remedy thus afforded does not prevent any person from enforcing any other remedy which he otherwise would have had, except as otherwise herein provided. Hayutin v. Gibbons, 139 Colo. 262, 338 P.2d 1032 (1959).

Claimant may pursue his remedy for a money judgment, notwithstanding he has a right to a lien. Hayutin v. Gibbons, 139 Colo. 262, 338 P.2d 1032 (1959); Tighe v. Kenyon, 681 P.2d 547 (Colo. App. 1984).

Recovery of judgment for debt no bar to foreclosure action. The recovery of judgment for a debt due for labor and materials furnished by a contractor does not bar an action by the creditor to foreclose a mechanic's lien to secure the payment of the same indebtedness. Marean v. Stanley, 5 Colo. App. 335, 38 P. 395 (1894).

Failure to investigate information sources deprives guarantors of remedy. Where guarantors have the same sources of information available to them as mortgagor, failure to investigate deprives them of any remedy misrepresentations might have afforded them. Plateau Supply Co. v. Bison Meadows Corp., 31 Colo. App. 205, 500 P.2d 162 (1972).

Unenforceability of mechanics' lien does not preclude assertion of claim premised on unjust enrichment. F.M. Hall & Co. v. Sw. Props., 747 P.2d 688 (Colo. App. 1987); Redd Iron v. Int'l Sales & Serv., 200 P.3d 1133 (Colo. App. 2008).

This section is the rare exception to the doctrine of claim preclusion and permits a subsequent action based upon the same claim for relief involving the same parties. Dave Peterson Elec., Inc. v. Beach Mtn. Builders, Inc. 167 P.3d 175 (Colo. App. 2007).

In enacting this section, the general assembly intended to abrogate the doctrine of claim preclusion by permitting a mechanic's lien claim subsequent and in addition to a claim to foreclose a judgment lien. Dave Peterson Elec., Inc. v. Beach Mtn. Builders, Inc., 167 P.3d 175 (Colo. App. 2007).

Applied in Cornell v. Conine-Eaton Lumber Co., 9 Colo. App. 225, 47 P. 912 (1897); Jordan v. Lone Pines, Ltd., 41 Colo. App. 152, 580 P.2d 1273 (1978).