Bradish v. James

• Decision Date: 31 October 1884
• Citation: 83 Mo. 313
• Parties: BRADISH v. JAMES, Appellant.
• Court: Missouri Supreme Court

83 Mo. 313

BRADISH

v.JAMES, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Phelps Circuit Court.--HON. V. B. HILL, Judge.

REVERSED.

Smith & Krauthoff for appellant.

(1) The tract against which the lien is sought to be enforced being over one acre in extent, the judgment is contrary to law and cannot stand. Engleman v. Graves, 46 Mo. 348; Williams v. Porter, 51 Mo. 441; Wright v. Beardsley, 69 Mo. 548; Ranson v. Sheehan, 78 Mo. 668. (2) The defendant pleaded payment in the answer and no reply was filed, and the judgment is erroneous for that reason. R. S., secs. 3524, 3525, 3545. The defendant did not waive the objection, as it objected to evidence offered by plaintiff to disprove the plea of payment. It is now too late to file a reply. Ladd v. Couzins, 35 Mo. 513. (3) The petition was fatally defective in not stating the date of filing the lien. Gault v. Soldani, 34 Mo. 150; Heltzell v. Langford, 33 Mo. 396. (4) The plaintiff was not entitled to recover on the evidence. No contract for the work was shown and plaintiff, therefore, did not have a lien. Hause v. Thompson, 36 Mo. 450; Hause v. Carroll, 37 Mo. 578; Porter v. Tooke, 35 Mo. 107. (5) There was no evidence that the plaintiff had taken the requisite steps under the statute to secure a lien. No proof was offered of the filing of the account, although the allegations of the petition on the subject were put in issue by the answer, nor is there anything to show that this action was commenced within ninety days after the filing of the account, if one was filed. These were necessary to be shown to entitle the plaintiff to a lien, and in the absence of proof of them there could be no recovery. Gault v. Soldani, 34 Mo. 150; Heltzell v. Langford, 33 Mo. 396; Lee v. Chambers, 13 Mo. 238; Mulloy v. Lawrence, 31 Mo. 583; Williams v. Porter, 51 Mo. 441, 442; Hall v. Johnson, 57 Mo. 221.

C. C. Bland for respondent.

EWING, C.

This suit was commenced on the 28th day of February, 1879, by filing the following petition: “Plaintiff states that the defendant owes him $97.80, an itemized account of which is herewith filed. (It may be remarked just here that this account has no date except 1878.) That said Jane E. James is a minor. That said indebtedness accrued on account of labor done and material furnished in and upon a frame dwelling house, one and one-half stories high, etc. (Here follows a full description of the house.) Said building is situated upon the following described parcel of ground, in the county of Phelps aforesaid, to-wit: Beginning at the northeast corner of said house, in the northwest quarter of the northeast quarter of section 5, in township 38, range 8 west, running thence from said northeast corner of said house to the center of the Rolla and Vienna road, which runs through the said northwest quarter of the northeast quarter; thence along said road in a southerly direction, 100 feet; thence west 400 feet; thence north 200 feet; thence east 400 feet to the said road; then to the point where the line from the northeast corner of the house running east intersects the said road. That said work and labor was done under a contract with the said Jane E. James and her guardians and curator, Thomas James, F. B. Dismer, and Kate Dismer. That the said Jane E. James is the owner of the said described house and parcel of land. That within six months from the date of performing the said work and labor and furnishing the said materials the plaintiff made out a statement of his account and a description of the above described property, verified by his affidavit, and filed the same in the office of the clerk of the Phelps circuit court, intending thereby to charge the above described property with his lien as a mechanic, for the value of his said work and labor, and the said materials. That by said declaration he did acquire his lien upon the aforesaid property. Wherefore he prays judgment,” etc.

The defendant answered by guardian, ad litem, in which the indebtedness on any account is denied. Denies that the account accrued on account of labor performed or material furnished at her request or at the request of any one by her authorized to make such request or contract, and alleges that she has no knowledge, etc., as to whether plaintiff had filed his alleged mechanic's lien, etc., and demanded proof.

I. The first question for consideration is the sufficiency of the petition. It is urged by the appellant that the petition does not contain the necessary allegations to constitute a cause of action. There being no appearance here on the part of the respondent the court is left in the dark as to his position. Sec. 3176, Rev. Stat., 1879, provides that every original contractor, seeking to obtain the benefits of a mechanic's lien, shall “within six months * * * after his indebtedness shall have accrued, file with the clerk of the circuit court of the proper county a just and true account of the demand due him * * * * after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both if known to the person filing the lien, which shall in all cases be verified by the oath of himself or some credible person for him.” The last clause of sec. 3179, Rev. Stat., 1879, provides as follows: “The petition, among other things, shall allege the facts necessary for securing a lien under this artiele and shall contain a description of the property charged therewith.” Section 3187, Rev. Stat., 1879, provides that: “All actions under this article shall be commenced within ninety days after filing the lien.”

The petition alleges that within six months from the date of furnishing the materials and performing the labor he filed his statement and account, etc., but it fails to state the date of the last item of the account or the...