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The Union Surety and Guaranty Co

The Union Surety and Cuairt,

TITLE III.

Proceedings for the enforcement of mechanics' liens on real

property.

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in courts not of record. § 3410. Transcripts of judgment in courts not of rerord 3411. Costs and disbursements. 3412. Judgment in case of failure to establish lien. 3413 Offer to pay into court. 3414. Preference over contractors.

3415. Judgment may direct delivery of property in lieu of money.

3416. Judgment for deficiency. 3417. Discharge of mechanics"

lien by order of court 3418. Judgments in actions to foreclose liens on account of public improvements.

3419. Judgments in action to foreclose a mechanics' lien on property of a railroad corporation.

§ 3398. Purpose of title; definitions. [Added 1897, to take effect September 1, 1897.] This title is to be construed 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 "real property," "lienor," "owner." "improvement," "public improvement," "contractor, ""sub-contractor,' "material man" and "laborer,' as used in this title, are defined by section two of such law.

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§ 3399. Enforcement of a mechanic's lien on real property. [Added 1897, to take 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 action, by the lienor, his assignee or legal 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.

§ 3400. Enforcement of a lien under contract for a public improvement. [4ded 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 corporation for which such public improvement is constructed, to the extent prescribed in article one of the lien law, and against the contractor or subcontractor liable for the debt, by a civil action, in the same court and in the same manner as a me hanie', lien on real property.

§ 3401. Action in a court of record; consolidation. [Added 1897, to take effect September 1, 1897.]- The provisions of this code, 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 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. [Added 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 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.

§ 3403. Eqities of lienors to be determined. [Added 1897, to take effect September, 1, 1897.]-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 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 within the state, of a summons and complaint verified in the same manuer 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 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.

§ 3405. When personal service cannot be made. [Added 1897, to take effect September 1, 1897.]—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.

§ 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 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 of 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 sum mons and complaint, judgment may be rendered for the amount claimed, with costs.

§ 3407. Issue, how tried. [Added 1897, to take effort September 1, 1857.1-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 thereon, 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 court.

§ 3408. Executions. [Added 1897, to take effect September 1, 1897.1-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 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 in 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 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 trauscript 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 eff ct September 1, 1897.]—If an action is brought to enforce a nechanic'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 whoni 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.

§ 3412. Judgment in case of failure to establish lien. [Added 1897, to take effect September 1, 1897.]-If the lienor shall 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 effert September 1, 1857.1-At any time after an action is brought under the provisions of this title, the owner may 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, and 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 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. 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 ap, eal.

§ 3414. Preference over contractors. [Added 1897, to take effect September 1, 1897.]—When a laborer or a material man shall perform labor or furnish materials for an improvement of real property for which he is entitled to a mechanic's lien, te amount due to him shall be paid out of the proceeds of the sale of such roperty under any judgment rendered pursuant to this title, in the order of priority of his lien, befor any part of sn h proceeds is paid to a contractor or

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