BOYETT'S SEPTIC TANK SERVICE, INC., AND AUTO-OWNERS INSURANCE COMPANY, APPELLANTS,
v.
DAVID K. LIPHAM, INDIVIDUALLY AND FOR THE USE AND BENEFIT OF UNITED SERVICES AUTOMOBILE ASSOCIATION, APPELLEES
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The court held that a prior dismissal order reinstating a material supplier's lien foreclosure action against an owner was erroneous because the suppliers' failure to timely assert claims against the contractor's payment bonds did not revive their liens against the owner, and the dismissal order was conclusive.
The court held that the owner's exemption from mechanics' liens, due to the provision of statutory payment bonds, was not negated by the suppliers' failure to timely assert claims against the surety, and that a prior dismissal order was conclusive.
Material suppliers sought foreclosure of mechanics' liens against an owner, but their action was dismissed because the contractor had provided statuto…
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PER CURIAM.
This interlocutory appeal questions the correctness of a partial summary judgment rendered in favor of appellees.
The record on appeal fails to conclusively establish that there was no genuine triable issue of a material fact under the issues as made by the complaint and the answer thereto. Under these circumstances, appel-lees were not entitled to a partial summary judgment as a matter of law, and the trial court erred in holding to the contrary. The partial summary judgment appealed is reversed and the cause remanded to the trial court for the purpose of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.
Reversed and remanded.
McCORD, C. J., and MILLS and ERVIN, JJ., concur.