(1) Any number of persons claiming liens against the same property and not contesting the claims of each other may join as plaintiffs in the same action, and when separate actions are commenced, the court may consolidate them upon motion of any party in interest or upon its own motion.
(2) Upon such procedure for consolidation, one case shall be selected with which the other cases shall be incorporated, and all the parties to such other cases shall be made parties plaintiff or defendant as the court may designate in said case so selected. All persons having claims for liens, the statements of which have been filed as provided in this article, shall be made parties to the action.
(3) Those claiming liens who fail or refuse to become parties plaintiff, or for any reason have not been made such parties, shall be made parties defendant. Any party claiming a lien, not made a party to such action, at any time within the period provided in section 38-22-109, may be allowed to intervene by motion, upon cause shown, and may be made a party defendant on the order of the court, which shall fix by such order the time for such intervenor to plead or otherwise proceed. The pleadings and other proceedings of such intervenor thus made a party shall be the same as though he had been an original party. Any defendant who claims a lien, in answering, shall set forth by cross complaint his claim and lien. Likewise such defendant may set forth in said answer defensive matter to any claim or lien of any plaintiff or codefendant or otherwise deny such claim or lien. The owner of the property to which such lien has attached, and all other parties claiming of record any right, title, interest, or equity therein, whose title or interests are to be charged with or affected by such lien, shall be made parties to the action.
Source: L. 1899: p. 272, § 11. R.S. 08: § 4035. C.L. § 6452. CSA: C. 101, § 25. CRS 53: § 86-3-11. C.R.S. 1963: § 86-3-11.
ANNOTATION
I. General Consideration.
II. Necessary Parties.
I. GENERAL CONSIDERATION.
Court's jurisdiction to consolidate actions resolved in Rule 21, C.A.R. proceeding. Contention that district court had no power under subsection (1) to consolidate one action which was pending with another action which had been dismissed with prejudice, and thus, was proceeding without in personam jurisdiction, is a proper matter to be resolved in a Rule 21, C.A.R. proceeding for a writ of mandamus. Columbia Sav. & Loan Ass'n v. District Court, 186 Colo. 212, 526 P.2d 661 (1974).
Applied in Orman v. Crystal River Ry., 5 Colo. App. 493, 39 P. 434 (1895); Clark Hdwe. Co. v. Centennial Tunnel Mining Co., 22 Colo. App. 174, 123 P. 322 (1912); McClung v. Griffith, 127 Colo. 315, 255 P.2d 973 (1953); Nat'l Union Fire Ins. Co. v. Denver Brick & Pipe Co., 162 Colo. 519, 427 P.2d 861 (1967); Rogers Concrete, Inc. v. Jude Contractors, 38 Colo. App. 26, 550 P.2d 892 (1976); Trustees of Mtg. Trust of Am. v. District Court, 621 P.2d 310 (Colo. 1980).
II. NECESSARY PARTIES.
Action must be against all persons against whom priority of lien is claimed. Johnston v. Bennett, 6 Colo. App. 362, 40 P. 847 (1895).
Contractor and lien claimants are parties to action. The mechanics' lien act clearly contemplates that the contractor and all claimants of liens shall be made parties to an action brought to enforce a lien, and that all shall have their rights adjudicated in one action and protected and enforced in one judgment. Union Pac. Ry. v. Davidson, 21 Colo. 93, 39 P. 1095 (1895); Nat'l Union Fire Ins. Co. v. Denver Brick & Pipe Co., 162 Colo. 519, 427 P.2d 861 (1967).
In an action by a materialman or subcontractor to foreclose his lien, the original contractor must be made a party. State Bank v. Plummer, 54 Colo. 144, 129 P. 819 (1912).
The mechanics' lien law contemplates that all lien claimants be made parties to an action to foreclose. Franklin Contract Sales Co. v. First Nat'l Bank, 200 Colo. 370, 615 P.2d 684 (1980).
"Owner" defined. The "owner", referred to in subsection (3), is the person upon whose interest in the property the lien is claimed and sought to be established. Horn v. Clark Hdwe. Co., 54 Colo. 522, 131 P. 405 (1913).
Owner made party if mortgagee joined. If a mortgagee is joined, the owner must also be made a party. State Bank v. Plummer, 54 Colo. 144, 129 P. 819 (1912).
Section places other claimants in category with owner. This section places other claimants of record in the same category as the owner. San Juan Hdwe. Co. v. Carrothers, 7 Colo. App. 413, 43 P. 1053 (1896); Hawkins v. Grisham, 69 Colo. 156, 170 P. 187 (1918).
Lessee as "owner". Where the liens asserted and sought to be established by claimants are limited to the interest of the lessee, he is the "owner" of the property, as contemplated by subsection (3). Horn v. Clark Hdwe. Co., 54 Colo. 522, 131 P. 405 (1913).
Holder of note secured by deed of trust not "owner". The holder of a promissory note secured by a deed of trust is not the "owner" of the land within the meaning of subsection (3). Cornell v. Conine-Eaton Lumber Co., 9 Colo. App. 225, 47 P. 912 (1897).
Subsequent or junior encumbrances deemed indispensable parties. Subsequent or junior encumbrancers, of record at the time an action is brought to enforce a mechanic's lien, are indispensable parties in order to establish the validity of the lien against the property. Hawkins v. Grisham, 69 Colo. 156, 170 P. 187 (1918).
A mortgagee of record, whose lien is junior to that of mechanics, being interested in objecting to invalid lien claims, is a necessary party to a suit to foreclose mechanic's liens on the property. Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929).
Purchaser pendente lite is proper party. A purchaser pendente lite of property involved in a mechanic's lien suit is a proper party. Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929).
Only one claimant required to begin action within limitation period. Section 38-22-110 and this section, read together, require only that one of the lien claimants begins the action within six months of the completion of the work, and that the filing of such action by one lien claimant is sufficient to meet the six-month time limitation as to all lien claimants, as appear of record, who are made parties either plaintiff or defendant within the six-month limitation period. Bulow v. Ward Terry & Co., 155 Colo. 560, 396 P.2d 232 (1964).
Parties other than owner and claimants not required for lien's enforcement. This section requires no parties to a suit for the enforcement to a mechanic's lien, except the owner and persons having claims for liens; any number of lien claimants may join as plaintiffs, and those who are not made parties plaintiff may be made parties defendant, but persons claiming interests of some other kind in the property involved need not be made defendants. Branham v. Nye, 9 Colo. App. 19, 47 P. 402 (1896).
Holder of note not indispensable party to an action to foreclose a mechanic's lien against the property. Cornell v. Conine-Eaton Lumber Co., 9 Colo. App. 225, 47 P. 912 (1897).
Beneficiary in deed of trust not necessary party. The beneficiary in a deed of trust is not a necessary party to the foreclosure of a mechanic's lien on the premises conveyed by the deed of trust, but where such foreclosure is had without making such beneficiary a party, his interest is not bound thereby, and he may attack the validity of such lien and foreclosure in a subsequent action. Fleming v. Prudential Ins. Co., 19 Colo. App. 126, 73 P. 752 (1903).
Mortgagee not obligated to intervene. The holder of a mortgage or trust deed on property is under no obligation to intervene in an action to foreclose a mechanic's lien involving the mortgaged premises. Stark Lumber Co. v. Keystone Inv. Co., 92 Colo. 259, 20 P.2d 306 (1933).