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The Union Surety and Guaranty es

The Union Surety and Court,

TITLE III.

a mo. on

Proceedings for the enforcement of mechanics' liens on real

property. § 3398. Purpose of title; defini.

in courts not of record, tions.

$ 3410. Transcripts of judgment 8399. Enforcement of

in courts not of rerord chavic's lien real 3411. Corts and disbursem bize property.

3412. Judgment in case of fait 3400. Enforcement of a lien un

ure to establish lien. der contracts for public 3413 Offer to pay into court improvement,

3414. Preference over contract3401. Action in a court of re

OTS. cord ; consolidation. 3415. Judgment may direct de 3402. Parties to action in a conrt

livery of property In of record

lieu of money. 3403. Equities of lienors to be 3416. Judgment for deficiency. determined

3417. Discharge of mechanice" 3404. Action in a court not of

lien by order of court record

3418. Judgments in actions to 3405. When personal service

foreclose liens on 80cannot be made.

count of public in. 3406. Proceedings on return of

provements. summons: judgment 3419. Judgments in action to by default.

foreclose a mechanics 3407. Issue; how tried.

lien on property o: a 3408. Executions.

railroad corporation. 3409. Appeals from judgments

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$ 3398. Purpose of title; definitions. [ded 1897, to take effect September 1, 1897.] This title is to be construeu in connection with article one of the lien law, and provides proceedings for the enforcement of liens for labor performed and materials furnished in the improvement of real property, created by virtue of such article. The terms ásréal property,” "lienor," "owner.” “iniprovement," "public improvement,” “contractor,

You gub-contractor,

material and “laborer,' as used in this title, are defined by section two of such law.

$ 3399, Enforcement of a mechanic's lien on real property. [Addeil 1897, to talce effect September 1, 1897.) -A mechanic's lien on real property may be enforced against such property, and against a person liable for the debt upon which the lien is founded, by an aciion, by the lienor, his assignee or legal representative, in court which has jurisdiction in an action founded on a contract for & sum of money equivalent to the amount of such debt.

$ 3100. Enforcement of a lien under contract for a public improvement. [ Id itd 1897, to take effect September 1, 1897.)--- Alien for labor done or materials furnished for a public improvement may be enforced against the funds of the municipal corporati in for which such public in:prove. ment is constructed, to the extent prescribed in article one of the lien law, and against the contractor or subcontractor Tiable for the debt, by it civil actin, in the same court and in the same muer as a mehani:.': lion on real property.

$ 3101. Action in a court of record; consolidation. [Added 1897, lo take effect September 1, 1897.)- The provisions of this code, relating to actions for the foreclosure of a wortgage 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 title. 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

$ 3402. Parties to an action in a court of record. [Add:d 1897, to take effect September, 1, 1897.] --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 the eof. 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 defendunt. Two or more lienors having liens upon the same property or any part thereof, may join as plaintiffs.

$:403. Eqities of lienors to be determined. [Added 1897, to take effect September, 1, 1897.]-The court may ail. just and determine the equities of all the parties to the action and the order of priority of different liens, and det r. inine all issues raised by any defense or counter claim in the action.

$ 3404. Action in a court not of record. (Added 1897, to take effect September 1, 1897.)- 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 witbin 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 this code for the commencement of an action upon a con. tract 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.

§ 3405. When personal service cannot be made. [Added 1897, to take effect September 1, 1897. ]-If persona! service of the summons cannot be made upon a defendant in an action in a court not of record, by reason of his ab. sence from the state, or his concealment tberein, such ser. vice 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.

§ 3406. Proceedings on return of summons; judgment by default. (Added 1897, to take effect September 1, 1897.)At the time and place specified in the summons for the leturn 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 deuial 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 apon which it is founded. If the defendant fail to appear ou tut return-day, on proof by affidavit of the service of the submons and complaint, judgment may be rendered for the amount claimed, with costs.

$ 3407. Issue, how tried. [Added 1897, to take effert September 1, 1897.1-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 then OD, which shall be enforced, if for the plaintiff, in the manner provided in the following section. If for the defendaut in the same manner as in an action on contract in such couit

$ 3408. Executions. (Added 1897, to take effect Sertem. ber 1, 1897.)-Execution may be issued upon a judguitnt obtained in an action to enforce a mechanio's lien against real property in a court not of record, which shall direct the ofticer to sell the title and interest of the owner in the premises, upon which the lien set forth in the complaint ex isted at the time of filing the notice of lien.

§ 3409. Appeals from judgments in courts not of record. [Added 1897, to take effect September 1, 1897.)--A.. appeal may be taken from such judgment rendered in . court not of record, according to the provisions of this code regulating appeals from judgments in actions on contract w such courts.

$ 3410. Transcripts of judgments in courts not of record. [Added 1897, to take effect September 1, 1897.)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 judgmenis therein, shall furnish the successful party a transcript thereof, which ho 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.

$ 3411. Costs and disbursements. [Added 1897, to take efj ct seplember 1, 1897.)- If an action is brought to enforce it mechanic's lien against real property in a court of record, ibe 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 whoni and by whom the costs are to be paid. If such action is bronght 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.

$ 3412. Judgment in case of failure to establish lien. [Added 1897, to take effect September 1, 1897.)-If the lienor sball fail, for any reason, to establish a valid lien in an action under the provisions of this title, 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.

$ 3413. Offer to pay into court. [Added 1897, to take efíeri September 1, 18.7.)-At any time after an action is brought under the provisions of this title, the owner mny make and file with the clerk with whom the notice of lien is filed, it 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, an l to execute and deposit securities 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 acce, tance is served upon the party making the offer, the court, upon proof of such offer and acceptance, may inake 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 plintiff may make such order, withoui the acceptance of the offer by the plaintiff. Money or securities deposited 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

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8 3414. Preference over contractors. [Added 1897, to take effect Sepleinber 1, 1897.)— When a laborer or a material man shall perforın labor or furnish materials for an improvement of real property for which he is entitled to a mechanic's lien, t.e amount due to him shall be paid out of the proceeds of the sale of such , roperty under any judgment rendered Pusuant to this title, in the order of priority of his lien, befor any part of su u proceeds is paid to a contractor or

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