Anderson v. Seamans

• Decision Date: 05 November 1887
• Citation: 5 S.W. 799
• Parties: ANDERSON and another <I>v.</I> SEAMANS and Wife.
• Court: Arkansas Supreme Court

5 S.W. 799

ANDERSON and anotherv.

SEAMANS and Wife.

Supreme Court of Arkansas.

November 5, 1887.

Appeal from circuit court, Desha county; JOHN A. WILLIAMS, Judge.

J. W. Dickinson, for appellants. W. S. McKain, for appellees.

SMITH, J.

Anderson & Bird furnished lumber to build a hotel for Seamans and wife, and, within 90 days after the last lot of lumber had been delivered, brought the present action to establish and enforce their lien as material furnishers. They filed with their complaint a bill of particulars, setting forth the dates, quantities of lumber, and prices. The defendants were duly served with process; but, not having appeared, a personal judgment was rendered against them by default, and likewise the hotel and lots upon which it is situate were condemned to be sold for the satisfaction of said judgment. On a subsequent day of the same term, the defendants moved the court to open this default, and let them in to defend. They alleged that judgment should only have been in personam, and not in rem; that the plaintiffs had no lien, because they had not complied with the statute by causing their claim of lien to be filed and recorded. The circuit court vacated so much of the judgment as declared a specific lien on the house and lots, leaving the money judgment in force. It also appeared that, before the modification of the judgment, plaintiffs had taken out a special fi. fa., and were about to cause the premises to be sold, when the defendants claimed the same as a homestead. The clerk refused a supersedeas; but the circuit court allowed the claim of exemption. From the action of the court in refusing them any relief against the land, Anderson & Bird have appealed.

The statute directs that any person wishing to avail himself of the mechanic's lien law, shall file with the clerk of the circuit court, within 90 days after all the materials have been furnished or mechanical work has been done, a just and true account of the debt due, after allowing all credits, and containing a correct description of the property to be charged with the lien, verified by affidavit. And it is made the duty of the clerk to indorse upon the account the date of its filing, and to transcribe in a book kept for that purpose the date of filing, and the amount of the lien, the names of the person laying the lien, and of the person against whose property the same is filed, together with a description of the property to be charged. And within nine months thereafter the claimant is to follow up his lien by an action in the circuit court, wherein his complaint must allege the performance of all the acts necessary under the statute to fix the lien. Mansf. Dig. §§ 4406, 4407, 4413, 4418; Railroad Co. v. McKay, 30 Ark. 682; Chaffin v. McFaddin, 41 Ark. 42. Here the verified account was filed within the time limited by law, and the date of the filing was indorsed thereon; but no abstract of the particulars was made in the book kept for recording such liens. The reason for this, doubtless, was that the filing of the account and the bringing of the action were simultaneous, — in fact, one and the same transaction, the account being attached to the complaint, and being the foundation of the suit.

In Hicks...