HICKEY v. POLACHEK

No. 54241; CA A25362.

666 P.2d 294 (1983)

63 Or.App. 784

James W. HICKEY, Respondent, v. Richard POLACHEK, Clayton Archibek, Morse Bros., Inc., an Oregon Corporation, Lee's Lumberland, Inc., an Oregon Corporation, Phillip Paul Gilbert and Lisbeth P. Gilbert, Dba Cascade Pump Service, First National Bank of Oregon, an Oregon Banking Corp., Defendants, Lee's Lumberland, Inc., Appellant. First National Bank of Oregon, a National Banking Association, Now Known As First Interstate Bank of Oregon, Respondent, v. J.C. LEMONS, Inc., an Oregon Corporation; Gene L. Shindler: Roger W. Rowe; J & J Electric, Inc., an Oregon Corporation; Cascade Truss Co., Inc., an Oregon Corporation; Ronald D. Whitaker; Gary D. Eckert and Norah L. Eckert; and B. & S.P. General Contractors, an Oregon Corporation, Third-Party Defendants. Phillip Paul Gilbert and Lisbeth P. Gilbert, Dba Cascade Pump Service, Plaintiffs, v. Richard POLACHEK and Clayton Archibek, Defendants.

Court of Appeals of Oregon.

Decided July 6, 1983.


Attorney(s) appearing for the Case

Edward Ray Fechtel, Eugene, argued the cause for appellant. With him on the briefs was Husband, Johnson & Fechtel, Eugene.

Bruce A. Rubin, Portland, argued the cause for respondent, First Nat. Bank of Oregon. With him on the brief were James N. Westwood, Randee G. Fenner, and Miller, Nash, Yerke, Wiener & Hager, Portland.

Paul H. Kuebrich, Albany, filed the brief for respondent James W. Hickey.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.


WARDEN, Judge.

The issue in this case is whether a construction lien takes precedence over a mortgage when the mortgage was not recorded until after the holder of the construction lien commenced to deliver materials to the property. The matter was submitted to the trial court on stipulated facts. The court issued a decree foreclosing the construction lien and two such subsequently-recorded mortgages and giving the mortgages priority over the lien. We reverse.

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