Fulton v. Watts

Citation96 So. 184,209 Ala. 408
Decision Date19 April 1923
Docket Number7 Div. 377.
PartiesFULTON ET AL. v. WATTS.
CourtSupreme Court of Alabama

Rehearing Denied May 10, 1923.

Appeal from Circuit Court, Clay County; W. L. Longshore, Judge.

Action by C. L. Watts against H. G. Fulton and W. F. Fulton, Jr., to fasten a materialman's and mechanic's lien on property of defendants. From a judgment for plaintiff defendants appeal. Transferred from Court of Appeals under section 6, p. 449, Act 1911. Affirmed.

Garrison & Gay, of Ashland, for appellants.

John A Darden, of Goodwater, for appellee.

ANDERSON C.J.

In order to establish a lien upon the property it was essential for the complaint to aver the owner or proprietor of same. Sanitary Plumbing Co. v. Simpson, 200 Ala. 590, 76 So. 948. None of the counts save the last one, which we number four, avers that the defendants, or either of them owned the property upon which the lien was sought and fastened by the judgment of the circuit court. As the defendants' demurrer raising this point went to the complaint and each count thereof separately and severally the trial court erred in overruling same as to counts 1, 2, and 3. This case is appealed, however, upon the record proper, and the record shows that it was tried upon issues submitted to the jury, and from aught appearing the defendants were proven to be the owners of the property as charged in the fourth count of the complaint. This case therefore falls under the influence of rule 45 as construed in the case of Henderson v. Tenn. Co., 190 Ala. 126, 67 So. 414. Moreover the oral charge of the court is not set out as required by the acts of 1915, p. 815, and it might disclose that the court charged that the plaintiff had to prove that the defendants were the owners of the property.

We do not think that the counts were subject to the other grounds of demurrer, though the same could have more properly averred that the land was "not in a city, town or village," as set forth in section 4754 of the Code, rather than "in the country." We think, however, as the term "country" is used in the complaint it excludes the idea that the property is in a city, town, or village. It is evident the lawmakers did not intend "country" and "village" to mean the same, else "village" would not have been expressed with city and town as not being in the country.

The judgment of the circuit court is affirmed.

Affirmed.

SAYRE GARDNER, and MILLER, JJ.,...

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5 cases
  • J. H. Burton & Sons Co. v. May
    • United States
    • Alabama Supreme Court
    • January 22, 1925
    ... ... v. Rollins, 192 Ala. 534, ... 68 So. 417, Ann.Cas. 1917D, 929; Taylor v. Lewis, ... 206 Ala. 338, 89 So. 581; Fulton v. Watts, 209 Ala ... 408, 96 So. 184; Clayton v. Jordan, 209 Ala. 334, 96 ... To ... authorize a recovery under said count the ... ...
  • Most Worshipful Grand Lodge of A. F. & A. M. of Alabama (Colored) v. Callier
    • United States
    • Alabama Supreme Court
    • March 24, 1932
    ... ... arguments held ineradicable. Anderson v. State, 209 ... Ala. 36, 43, 95 So. 171; Bestor v. State, 209 Ala ... 693, 96 So. 899; Fulton v. Watts, 209 Ala. 408, 96 ... So. 184; Moulton v. State, 199 Ala. 411, 74 So. 454; ... James v. State, 170 Ala. 72, 54 So. 494; Stone ... ...
  • Fowler v. Mackentepe
    • United States
    • Alabama Supreme Court
    • January 23, 1937
    ... ... designation or description of the land on which the building ... or improvement is situated, if not in a city, town, or ... village. Fulton et al. v. Watts, 209 Ala. 408, 96 ... The ... description required for urban lots or lands is different ... from that required for rural ... ...
  • Miller v. Mutual Grocery Co.
    • United States
    • Alabama Supreme Court
    • November 27, 1925
    ...to not only show error but also that he was probably injured thereby." Henderson v. T.C.I. Co., 190 Ala. 126, 67 So. 414; Fulton v. Watts, 209 Ala. 408, 96 So. 184; Sup.Ct.Rule In the absence of a bill of exceptions setting out the evidence, we have no knowledge whether the evidence present......
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