Brewton v. Sessions

• Decision Date: 10 November 1955
• Docket Number: 4 Div. 853
• Citation: 264 Ala. 123,84 So.2d 763
• Parties: Evon E. BREWTON et al. v. L. F. SESSIONS.
• Court: Alabama Supreme Court

Page 763

84 So.2d 763

264 Ala. 123

Evon E. BREWTON et al. v. L. F. SESSIONS.

4 Div. 853.

Supreme Court of Alabama.

Nov. 10, 1955.

Rehearing Denied Feb. 2, 1956.

R. Clayton Wiggins Dothan, for appellants.

Chas. O. Stokes, Ozark, for appellee.

MERRILL, Justice.

This is an appeal from a decree of the Circuit Court of Dale County, in Equity, which denied to appellants (complainants below) the establishment of a statutory materialman's lien on a certain lot and the building thereon. The bill, as originally filed, included several parties respondent but it is only from the decree relating to the appellee, L. F. Sessions, that this appeal is prosecuted.

The first contention made by the appellants is that the trial judge erred in rendering a final decree, since no note of submission was filed in compliance with Equity Rule 57, Code of Ala. 1940, Title 7, Appendix. That rule as pertinent here, reads:

'A note of submission, signed by each party to the submission or his attorney of record, showing the proof upon which he rests his case, shall be filed by the register at the time of a submission for a final decree; and nothing not noted on the note of submission shall be considered by the Court. But it is not necessary to note any testimony given orally before the judge in open court under Rule 56'.

The testimony in this cause was given orally before the Court; thus, there is no merit in this contention. See Schmale v. Bolte, 255 Ala. 115, 50 So.2d 262; George v. George, 255 Ala. 190, 50 So.2d 744; White v. White, 246 Ala. 507, 21 So.2d 436.

It is next urged that there was error in the decree in that it was held that the property involved was not subject to a statutory lien in favor of appellants. Our cases are uniform in holding that a mechanic's or materialman's lien is not allowable in equity independently of statute and where such statutory authority is relied upon, there must be strict compliance therewith. Emanuel v. Underwood Coal & Supply, 244 Ala. 436, 14 So.2d 151; Lindsey v. Rogers, 260 Ala. 231, 69 So.2d 445, 447 and authorities therein cited.

The statute under which appellants seek to establish their lien is Title 33, § 37, Code of 1940. As stated in Lindsey v. Rogers, supra:

'In other words the lien must be perfected by compliance with statutory requirements and it is an essential statutory requirement that there be a valid contract of purchase between the materialman and the owner of the property. This may arise either by virtue of a positive agreement between the materialman and the owner of the property or where the statutory notice has been given by the materialman to the owner prior to the furnishing of the materials that the materialman will look to the owner for payment for the materials. Buettner Bros. v. Good Hope Missionary Baptist Church, 245 Ala. 553, 18 So.2d 75, 76.'

Here it is undisputed that no notice was given by the appellants to the owner of the property on which the materials furnished were allegedly used. Thus, if appellants have a lien, it must arise 'by virtue of a positive agreement between the materialman...