Gilbert v. Talladega Hardware Co.

• Decision Date: 16 December 1915
• Docket Number: 5 Div. 596
• Parties: GILBERT v. TALLADEGA HARDWARE CO.
• Court: Alabama Supreme Court

70 So. 660

195 Ala. 474

GILBERT v. TALLADEGA HARDWARE CO.

5 Div. 596

Supreme Court of Alabama

December 16, 1915

Rehearing Denied Feb. 3, 1916

Appeal from Chancery Court, Chambers County; W.W. Whiteside Chancellor.

Bill by the Talladega Hardware Company against R.T. Smith and W.B Gilbert. From a decree overruling demurrers to the bill respondent Gilbert appeals. Affirmed.

N.D Denson & Sons, of Opelika, for appellant.

Charles S. Moon, of La Fayette, for appellee.

THOMAS J.

This is an appeal taken from a decree of the chancery court overruling demurrer of W.B. Gilbert to a bill filed by the Talladega Hardware Company, a corporation, against R.T. Smith and W.B. Gilbert. The appeal is taken by Gilbert alone. Acts 1911, page 589.

The suit sought to enforce a lien for material furnished by the complainant directly to the owner of the property, R.T. Smith, and used in the building and improvements on the lands described in the bill. It is alleged in the bill that at the time this material was furnished and used in such improvements on said lot, respondent R.T. Smith was its owner, and that he thereafter conveyed the lot so improved to respondent W.B. Gilbert. It is further alleged that after said materials were furnished and improvements were made on said lot--

"and within six months after the indebtedness accrued, your orator did file in the office of the judge of probate of Chambers county, Ala., being the county in which said lot was located on which this lien is sought to be established, a statement in writing, duly verified, containing a just and true account of the demand secured by the materialman's lien, after allowing all the just credits, said statement containing a description of the property on which the lien is thereof, and did, within six months after the maturity of the account secured by said lien, file this, its bill of complaint, to enforce the same."

The materialman's lien is of statutory origin, and its attachment and enforcement depend upon a compliance, in all matters of substance, with the provisions of the statute to which it owes its existence. Phillips on Mechanics' Liens, §§ 10, 297; Ex parte Schmidt & Smith, 62 Ala. 252; Chandler v. Hanna, 73 Ala. 390; Globe Iron Roofing & Corrugating Co. v. Thacher, 87 Ala. 458, 6 So 366; Long v. Pocahontas, etc., Co., 117 Ala. 587, 23 So. 526; Loyd v. Guthrie, 131 Ala. 65, 31 So. 506. Statutes in derogation of the common law, as a general rule, are to be construed with "reasonable strictness." Cocciola et al. v. Wood-Dickerson Supply Co., 136 Ala. 532, 535, 33 So. 856; Duncan v. Ashcraft, Adm'r, 121 Ala. 552, 25 So. 735; Gunter et al. v. Belser et al., 154 Ala. 489, 45 So. 582. Applying this rule of construction of statutes to the facts of the instant case, as stated in complainant's bill, the bill was not subject to demurrer that the claim of complainant was not filed in the probate office, after its accrual, within the time prescribed by the statute. Code 1907, § 4758. Complainant was an original contractor within the terms of the statute (Wahouma Drug Co. v. Kirkpatrick Sand & Cement Co., 187 Ala. 318, 65 So. 825; Trammell v. Hudmon, 78 Ala. 222), and had six months time after the indebtedness accrued within which to file in the office of the judge of probate of Chambers county, Ala., in which was situated the lot so improved by material furnished by complainant, a statement in writing, verified by the oath of some person having knowledge of the facts (Globe Iron Roofing Co. v. Thacher, supra; Alabama State Fair, etc., v. Alabama Gas, etc., Co., 131 Ala. 256,...