#### Loomans Lumber Company, Appellant, and others, Respondents, vs. Mielke and others, Respondents.

*September 15*

October *5, 1915.*

*Mechanics’ liens: Subcontractors: Payment of fund into court: Priority: Distribution*pro rata.

Nothing having been due from a school district to the principal contractor for a school house when subcontractors brought their several actions under sec. 3328, Stats., but, after consolidation of the actions, the district having paid into court a sum then *312admitted to be due and to wliicli neither the district nor the principal contractor made any claim, a distribution of such sum *pro rata*among the plaintiffs was properly adjudged without priority according to the time of the commencement of the several actions.

Appeal from a judgment of tbe circuit court for Eond du Lac county: Chesteb A. Eowleb, Circuit Judge.

*Affirmed.*

*O. F. Hooker,*for tbe appellant.

Eor tbe respondents *Mielke*and *Douglas*there was a brief by *G. G. Gannon;*for tbe respondents *Kaukauna Lumber & Manufacturing Company*and *Pindle-Jachson Oompany*a brief by *Julius P. Frank,*attorney, and *Ryan, Gary & Frank,*of counsel; for tbe respondent *J. F. Fge*a brief by *N. P. Christensen;*for tbe respondent *Warning Sheet Metal Gompany*a brief by *Williams & Williams;*and tbe cause was argued orally by *N. L. Baker.*

Timlin, J.

Tbe appellant and seven others, respondents herein, all subcontractors or materialmen, began suits under sec. 3328, Stats., against tbe school district and a principal contractor. These suits were commenced on and between tbe 10th day of January, 1913, and tbe 12th day of March,. 1913. One of tbe respondents, *Warning Sheet Metal Company,*began a second suit on tbe same demand on tbe 2d day of September, 1914. These actions were then consolidated. Tbe principal contractor bad defaulted and tbe district bad lawfully taken over tbe contract for tbe purpose of completing it at tbe expense of tbe principal contractor. Under such circumstances it was not known and could not be ascertained definitely what sum, if anything, would become due tbe principal contractor. In December, 1914, tbe principal contractor and tbe school district entered into a stipulation to tbe effect that there was then due tbe principal contractor $4,000, which tbe school district paid into court, “to be paid *313to tbe proper person or persons legally entitled to bave and receive tbe same as authorized and warranted by tbe facts, circumstances, and proofs in tbis action, as provided by tbe statutes of Wisconsin and law and as ordered and directed by tbe order and judgment of tbe court.” Tbe school district was discharged from further liability in tbe case, in analogy to a case of interpleader. Tbe circuit court found on sufficient evidence, hence it must be assumed as a verity here, that at tbe time of tbe commencement of each of tbe several actions above noted there was nothing due from tbe school district to tbe principal defendant. A case, therefore, is presented in which each of tbe claimants in tbe consolidated action bad begun bis suit prematurely and was not entitled to recovery or priority, but a fund was paid into court on a date certain when all said actions were pending and for tbe benefit of whomsoever might be entitled thereto, tbe school district and tbe principal contractor making no claim to such fund. It follows that tbe ruling of tbe circuit court in distributing tbis fund of $4,000 *pro rata*among said claimants was correct. There is nothing in such ruling which conflicts with *James v. Davidson,*81 Wis. 321, 51 N. W. 565, or *Bank of Iron River v. School Directors,*91 Wis. 596, 65 N. W. 368. In tbe former case subcontractors like tbe respondents here were held not entitled to question tbe right or priority of one who bad received bis money, while here tbe appellant becomes an actor and has no standing which enables it to question tbe right of tbe respondents to a *pro rata*distribution.

*By the Gourt.-*— -Judgment affirmed.