Boland v. Webster

• Decision Date: 04 November 1907
• Citation: 105 S.W. 34,126 Mo.App. 591
• Parties: JOHN BOLAND, Respondent, v. FRED L. WEBSTER et al., Appellants
• Court: Kansas Court of Appeals

105 S.W. 34

126 Mo.App. 591

JOHN BOLAND, Respondent, v. FRED L. WEBSTER et al., Appellants

Court of Appeals of Missouri, Kansas City

November 4, 1907

Appeal from Boone Circuit Court.--Hon. Alexander H. Waller, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Thomas J. Tydings and E. W. Hinton for appellant.

Defendant's demurrer to the evidence should have been sustained because plaintiff failed to offer in evidence any lien statement thus failing to show a compliance with section 4207, Revised Statutes 1899, which is a condition precedent to the existence of a lien. The plaintiff identified a document by the clerk as the lien filed, and later offered and read in evidence his account. But he wholly failed to produce any lien statement, describing the property, etc., as required by the statute. Burrough v. White, 18 Mo.App. 229.

F. G Harris and Arthur Bruton for respondent.

The court properly overruled demurrer offered by appellant as petition, lien account and statement filed apprised appellant of every phase of claim, condition and right he had under the law and facts of the case, none of which were attempted to be refuted or called in question by him at the trial of said case.

OPINION

JOHNSON, J.

--Action to enforce a mechanics' lien brought by a subcontractor. A jury was waived, and the learned trial judge, after hearing the evidence, found the issues in favor of plaintiff and rendered judgment for the enforcement of the lien. Defendant Baldridge, the owner of the property appealed. He assigns a number of grounds for a reversal of the judgment, all of which, with one exception, are untenable.

The facts constitutive of the cause of action are sufficiently alleged in the petition and the finding that the statement for the lien was filed in the time prescribed by the statute is supported by substantial evidence, but the cause must be remanded on the ground, properly preserved in the record that plaintiff, in failing to offer in evidence the statement thus filed, omitted to prove a fact essential to his right to a lien. It appears that he did prove by competent evidence the date of the filing of the lien paper in the office of the circuit clerk, and that he offered in evidence the account appearing in that instrument, but for some reason not disclosed, did not offer any other portion of the instrument and, consequently, the record is barren of proof tending to show...