star-pagination">*Page 205 funds on deposit; and Fertitta Brothers were given a judgment for their claim against Sanders and the plaintiffs, with recognition of their lien and privilege on the fund to be prorated with the claim of Anderson-Post; the attorney for the defendants was allowed a fee of $25 for provoking the concursus to be paid out of the funds on deposit.

The plaintiffs only have appealed, and as the fund to be distributed controls the jurisdiction of this court, we have to consider the appeal taken by the plaintiffs insofar as it affects their interests in the case, both as to Anderson-Post and Fertitta Brothers, as well as that part of the judgment which allows attorney's fees to the defendants.

The plaintiffs assign and urge three principal errors in the judgment below, and these alleged errors will be taken up and discussed in the order in which they are presented here.

The first complaint urged is that the trial judge was in error in holding that the suit of plaintiffs to recover the balance due on the contract could be converted into a concursus proceeding by the defendants in their answer under the private building contract law, Act No. 298 of 1926. Section 4 of this act provides that where liens are filed against the building, the owner or any other interested person may file a petition in a court of competent jurisdiction, citing all claimants, including the contractor, etc., and shall require all claimants to assert their respective claims; and all claims shall be tried in concurso. This section of the act follows the preceding provisions giving a contractor, subcontractor, workmen and furnishers of material a lien and privilege on the building constructed and land on which it is situated, and those provisions of the act which provide the manner in which the owner can protect himself from personal liability and his property from the liens of these claimants by recording the contract and requiring of the contractor a bond for the protection of the owner against these claims. The fact that the owner fails to record the contract and require the bond, thereby rendering himself personally liable for these claims and subjecting his property to a lien and privilege under Section 12 of the act, would not affect his right to provoke a concursus as provided for in Section 4, where liens have been filed against the building.

It is urged that the concursus must be provoked by a petition and cannot be provoked by the owner in an answer by him to a suit brought against him by the contractor to collect the balance of the contract price. We cannot agree with this contention. While the act states that the owner may file a petition to provoke the concursus, it is common practice and well recognized in our jurisprudence that whenever a litigant can assert a right by a petition, ordinarily, he can assert the same right by an answer where he is sued by the other party before he has asserted his right by a petition.

The defendants had complied with all of their obligations under their contract with the plaintiffs and were ready and willing to pay this balance to plaintiffs or any other claimant who should be decreed entitled to it. They had a right as a defense to the suit which plaintiffs brought against them to require that plaintiffs prove that they had complied with their part of the contract by showing that all labor and material going into the building had been paid for before they were entitled to collect this balance.

It was not necessary for defendants to ask for a citation of plaintiffs in their answer, no more than it would have been necessary for them to ask for a citation of plaintiffs had they filed a reconventional demand. Plaintiffs made a demand on the defendants and as a defense to that demand the latter had a right to allege and prove that others were asserting a claim to the same fund which plaintiffs were endeavoring to collect. One who brings a suit under our procedure is required to take cognizance of the nature of the defense set up against his demands without the necessity of citing him.

As a second error, it is urged that the trial court had no authority to render a personal judgment against plaintiffs, the contractors, in favor of Anderson-Post and Fertitta Brothers, furnishers of materials, for two reasons: first, plaintiffs have never been cited by these claimants, and second, the material was sold to Sanders, the subcontractor, and not to plaintiffs. The first point is not well founded for the reason that, in a concursus proceeding, all claimants are both plaintiffs and defendants, each asserting and opposing the claims of all others without any special pleadings to that effect. Plaintiffs provoked the suit and *Page 206 themselves raised the question of their right to collect this balance, and their right to do so was put at issue by the defendants who, as a part of their defense, raised the question that these claimants were asserting a prior claim on this balance and it then devolved on plaintiffs to take notice of and disprove these other prior claims to the fund before they could compel defendants to pay it to them. See Graphic Arts Bldg. Co. et al. v. Union Indemnity Co. et al., 163 La. 1, 111 So. 470.

On the second point, the fact that the material was sold to Sanders, the subcontractor, by these claimants, and not directly to plaintiffs, the contractors, could not relieve the latter of their personal responsibility for the material which went into the building and which they had agreed to pay for themselves. As already stated, they signed a special authorization for the defendants to pay Sanders for this material and deduct the amount out of the contract price. $534 of the fund on deposit in court admittedly is the sum which these plaintiffs agreed for the defendants to hold out and pay for materials going into the building and for which the contractors were primarily liable. It is shown that the material making up these two claims was delivered by Sanders at the building site and placed in charge of the contractors to be used in constructing the building. The furnishers of material were not required to follow up this material and see that every piece of it was actually incorporated in the building. Derbes v. Marshall et al., La.App., 183 So. 74, and cases there cited.

The third assignment of error to the effect that the court had no right to render a personal judgment against plaintiffs in favor of Fertitta Brothers on their intervention in the suit and without citation to the plaintiffs has been answered in what is said above. After all, it seems that plaintiffs stand no chance to be held personally liable for any of these claims. The amount deposited by the defendants in court is more than sufficient to pay the claims of these two furnishers of material, as well as the attorney's fees allowed, unless the cost to be paid out of the fund is rather large.

We think the attorney's fees were properly allowed, but, under Section 10 of said Act No. 298 of 1926, these fees should be subordinated to the claims of the furnishers of materials, and the judgment will be amended accordingly.

For the reasons assigned, it is ordered that the judgment appealed from be amended so as to subordinate the attorney's fees awarded to counsel for defendants to the payment of the claims of Anderson-Post Hardwood Lumber Company, Inc., and Fertitta Brothers; and, otherwise, the said judgment is affirmed.

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