
    No. 26,491.
    W. D. Cobb, Appellee, v. Sarah J. Burford et al., Appellees, C. L. Pontius, John Martin and J. H. Turner, Appellants.
    
    SYLLABUS BY THE COURT.
    1. Pleading — Amendment—Discretion of Trial Court. Rule followed that the trial court has discretionary power to grant or deny motions to amend pleadings; and where'the record discloses nothing to indicate that such discretion was abused, error cannot be predicated thereon.
    2. Mechanics’ Liens — Pleading—Notice to Owner. In an action concerning certain liens claimed for labor and materials supplied in building a house, where the answers and cross petitions of certain lien claimants were demurrably defective in that they did not allege service of written notice on the owner of the property, informing her of the filing of their liens, the answer of the defendant owner examined, and held not to supply the wanting matter essential to the valid assertion of the cross petitioners’ liens, and held also that her answer was not fairly susceptible of an interpretation that the validity of the liens was admitted or that full compliance with the statutoiy requirements essential to the enforcement of' the liens had been waived.
    Appeal and Error, 4 C. J. p. 799 n. 34. Mechanic’s Liens, 40 C. J; pp. 64 n. 56, 160 n. 84, 174 n. 52, 175 n. 56, 434 n. 81. Pleading, 31 Cyc. p. 368 n. 9; 21 R. C. L. 573.
    Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.
    Opinion filed June 12, 1926.
    Affirmed.
    
      J. Graham Campbell, Ray Campbell, T. A. Nojtzger and George W. Cox, all of Wichita, for the appellants.
    
      John W. Adams, William J. Wertz and George Adams, all of Wichita, for appellee Sarah J. Burford.
    
      Robert C. Foulston, W. E. Holmes, D. W. Eaton, George Siefkin and Sidney L. Foulston, all of Wichita, for appellee The J. W. Metz Lumber Company.
   The opinion of the court was delivered by

Dawson, J.:

This action is concerned with the validity of certain liens claimed for labor performed and materials supplied in the improvement of real property.

It appears that the plaintiff Cobb built a house in Wichita for Sarah J. Burford. Pontius, Martin and Turner furnished certain labor and materials used in its construction. Cobb filed suit to recover his due. Mrs. Burford answered that she owed somebody $2,451.35, either plaintiff or one or more subcontractors, thirteen of whom had filed answers and cross petitions in the action setting up claims to liens on her property aggregating $4,386.17, but that Cobb was not entitled to anything until he had paid these liens.

Pontius, Martin and Turner, codefendants, were three of these subcontractors, and their claims were for $517.87, $350.57 and $153.33, respectively. In their answers and cross petitions they did not allege service of a written notice on Sarah J. Burford informing her of the filing of their several liens. In her answer to these lien claimants and cross petitioners defendant Burford joined issues on various matters not here pertinent, and alleged:

“This defendant further alleges that the said oodefendants and each of them did not file their mechanic's lien within the time allowed by law for furnishing their last labor and material.
“That the said 'defendants and each of them did not file a valid lien and serve their notice on this defendant, Sarah J. Burford, within the time pi'ovided by law.”

At the trial defendant Burford’s objection to the introduction of evidence on behalf of Pontius, Martin and Turner was sustained, on the ground that they had failed to include in their cross petition “an allegation that notice had been served upon Sarah J. Burford, as the owner of the premises, notifying her that a mechanic’s lien had been filed against her property, and because more than one year had passed from the date of the said filing at the time of the trial of this action.”

Judgments were entered in behalf of Pontius, Martin and Turner against the plaintiff Cobb, but it was also adjudged that they were not entitled to a lien against the property of Sarah J. Burford.

The cross defendants appeal, complaining of the rulings of the trial court against their tenders of evidence and their motion to amend their cross petitions.

Touching the ruling on the motions to amend the pleadings, that matter was vested in the sound discretion of the trial court, and error is not apparent thereon. (Croner v. Keefer, 103 Kan. 204, 206, 173 Pac. 282.)

Coming to the main question: the creation of a lien in behalf of a person who is not a direct creditor of the owner of property is purely a matter of statute, vand of course the statutory steps to create and perfect such lien must be taken, otherwise it does not arise. One of the requisite steps to perfect such lien is the giving of a written notice to the owner of the property that such a lien has been filed. The statute reads:

“Any lien provided for by this act may be enforced by civil action in the district court of the county in which the land is situated, and such action shall be brought within one year from the time of the filing of said lien with the clerk of said court: Provided, That where a promissory note is given such action may be brought at any time within one year from the maturity of said note. The practice, pleading and proceedings in such action shall conform to the rules prescribed by the code of civil procedure as far as the same may be applicable; and in case of action brought, any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed.” (R. S. 60-1405.)

It has been repeatedly held that a pleading setting up a mechanic’s lien is defective if it fails to allege service of notice in writing as required by the statute. (Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254; Baker v. Griffin, 120 Kan. 448, 243 Pac. 1057.) It is argued, however, that the want of this requisite allegation in the cross petition of appellants was supplied by the answer of Sarah J. Burford. We have quoted above the pertinent recitals of her answer. It would indeed be a curious piece of tergiversation if defendant’s pleading in which she alleged that appellants had failed to file their liens within time and alleged that their liens were not valid and that appellants had not served timely notice on defendant were fairly susceptible of an interpretation that she was admitting the timely filing and timely notice of appellants’ lien claims and admitting (or waiving) full compliance with all the statutory steps requisite to the enforcement of these liens. This court is bound to hold that the quoted recitals of defendant’s answer cannot be construed to supply the missing but essential allegations prerequisite to the enforcement of appellants’ lien claims against defendant’s property.

The court discovers nothing in the record to justify the contention that Mrs. Burford waived service of notice, nor any basis for appellants’ argument that she was estopped by her pleadings to raise the question of appellants’ failure to allege notice; nor does the record disclose anything approaching error which would permit the judgment to be disturbed.

Affirmed.  