Foster v. Prince, 4 Div. 628.
| Decision Date | 07 April 1932 |
| Docket Number | 4 Div. 628. |
| Citation | 224 Ala. 523,141 So. 248 |
| Parties | FOSTER v. PRINCE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.
Action to enforce a materialman's lien by R. L. Prince against W. O. Foster. From a judgment for plaintiff, defendant appeals.
Transferred from Court of Appeals under section 7326, Code of 1923.
Reversed and rendered.
Cope & Cope, of Union Springs, for appellant.
T. S Frazer, of Union Springs, for appellee.
The action was brought to enforce a materialman's lien. Code § 8832 et seq.
Defendant pleaded the general issue in short, etc.
On the trial the verdict of the jury was: "We, the jury, find the issue in favor of the plaintiff and assess the damages at the sum of $162.83." It was silent as to the lien. Thereupon the court rendered a personal judgment against defendant for the debt as per the verdict.
This was in November, 1930. In May following the plaintiff filed a motion to amend the judgment nunc pro tunc "according to the evidence had at the hearing of said cause," so as to declare a lien as per the complaint. On the hearing of such motion, the plaintiff offered all the testimony taken on the trial.
The court entered an amended judgment declaring a lien on the property and condemning same to sale for the satisfaction of debt and costs. From this amended judgment defendant appeals.
To enforce a materialman's lien, the complaint must allege the facts which entitle plaintiff to a lien and the enforcement thereof. These facts include the existence of the debt and of the special facts giving a materialman's lien on the property as security for the debt, facts showing a lien has attached, and has been preserved by the statement required by law to be filed in the office of the judge of probate.
When put in issue, the burden is on plaintiff to prove all the facts essential to the existence and enforcement of his lien. Sanitary Plumbing Co. v. Simpson, 200 Ala. 590, 76 So. 948.
By statute, the defendant, by appropriate plea, may put in issue the existence of the debt, or the existence of the lien, or both. Code, § 8848.
The general issue traverses all the material averments of the complaint, and casts on plaintiff the burden of proof as to the existence of the debt and also of the lien.
When, as here, a jury is demanded, all these issues are for the jury. If, under the evidence, the jury found the issue of indebtedness for the plaintiff, but failed to find the existence of a lien, the statute declares a judgment should go for the amount thereof.
Such was the verdict here.
If the verdict does not respond to all the issues, as per instructions, the court should decline to receive the verdict and have the jury return a verdict covering the issues presented.
It is error for ...
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Cumens v. Garrett
...provision of the mechanic's lien statutes are controlling and the right to a trial by jury is available. The case of Foster v. Prince, 224 Ala. 523, 141 So. 248 (1932), involved a law side action to enforce a materialman's lien where a jury verdict was rendered, assessing damages only. Seve......
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Penney v. State
...155 So. 576 229 Ala. 36 PENNEY v. STATE. 8 Div. 559.Supreme Court of AlabamaJune 7, 1934 ... Co., 217 Ala. 352, 116 So. 365; Foster v ... Prince, 224 Ala. 523, 141 So. 248; Scott v ... In ... Hopkins v. Duggar, 204 Ala. 626, 628, 87 So. 103, ... 104, Mr. Justice Sayre observed: "The ... ...
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... ... 147 W. T. RAWLEIGH CO. v. HANNON et al. 5 Div. 221.Alabama Court of AppealsMay 22, 1945 ... 527; ... City of Birmingham v. Hawkins, supra; Foster v ... Prince, 224 Ala. 523, 141 So. 248; Goldstein v ... 276, Code 1940; Lee v ... Campbell's Heirs, 4 Port. 198; Sewall v ... Glidden, 1 Ala. 52; Clay v ... ...
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...consideration. This was in accord with approved procedure. City of Tuscaloosa v. Fair, 232 Ala. 129, 135, 167 So. 276; Foster v. Prince, 224 Ala. 523, 524, 141 So. 248; City of Birmingham v. Hawkins, 196 Ala. 127, 131, 132, 72 So. 25; Higginbotham & Co. v. Clayton & Webb, 80 Ala. 194, 195; ......