Anderson v. Harvey & Jones
| Decision Date | 04 May 1934 |
| Docket Number | 4785 |
| Citation | 154 So. 495 |
| Parties | ANDERSON v. HARVEY & JONES et al |
| Court | Court of Appeal of Louisiana — District of US |
L. L Morgan, of Covington, and E. R. Stoker, of Baton Rouge, for appellant.
H. W Ayres, of Jonesboro, for appellee.
On September 30, 1931, the Louisiana Highway Commission and Harvey & Jones entered into a contract whereby Harvey & Jones obligated itself to construct and complete a highway designated as State Project No. 819, Sections A and B, on Routes 545 and 547, situated in Jackson parish, La., and to furnish all labor and material necessary for the completion of said project. The specifications are attached to said contract and include the fence to be built along said highway. The Union Indemnity Company furnished the bond required of the contractor by the Louisiana Highway Commission. Prior to the filing of this suit, the Union Indemnity Company was dissolved by order of court and its corporate existence terminated.
The plaintiff in this suit was employed by Harvey & Jones to furnish the posts and construct the fence along said highway. The agreed price for the posts, plus the agreed price for the labor in constructing said fence, amounted to $ 125.99, upon which amount plaintiff was paid $ 5 by Harvey & Jones. The contract was completed by the contractor on August 24, 1932 and same accepted by the Louisiana Highway Commission soon thereafter. On August 27, 1932, plaintiff filed a lien against said road for the amount due him and gave notice in accordance with law to the Louisiana Highway Commission, and said lien was duly recorded in the mortgage records of Jackson parish on August 29, 1932. Not receiving pay for his work and material furnished, plaintiff filed this suit.
Harvey & Jones did not answer and judgment by default was confirmed against it. The Louisiana Highway Commission first filed an exception of no cause of action which, without objection, was referred to the merits; an answer was then filed denying plaintiff's right to recover against the Highway Commission and denying that plaintiff had a valid lien against said road.
On trial of the case on the merits, defendant did not further preserve its exception of no cause of action by timely objection to any evidence. It therefore follows that the exception of no cause of action, which was referred to the merits without objection on the part of defendant, will have to be passed upon after considering the evidence in the case. The exception was leveled at article 9 of the petition, which in part reads as follows: "(3)5C the said Louisiana Highway Commission has paid out to various and sundry creditors and other persons claiming to be creditors and holders of lien and privileges, from the funds held by the said Commission with which to pay for the work on said project, a sum greatly in excess of the amount of petitioner's claim and debt." Defendant contends that the above allegation is one of other liens of record, and that under No. 224 of 1918, §§4 and 5, as construed in Mahoney...
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...See Bell v. Globe Lumber Co. Ltd., 107 La. 725, 31 So. 994; McQueen v. Tremont Lumber Co., La.App., 151 So. 683 and Anderson v. Harvey & Jones, La.App., 154 So. 495. * * *' See also Roy v. Mutual Rice Co., of Louisiana, 177 La. 883, 149 So. The petition of plaintiff stated a cause of action......
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