Globe Iron Roofing & Corrugating Co. v. Thatcher

Citation87 Ala. 458,6 So. 366
CourtSupreme Court of Alabama
Decision Date19 June 1889
PartiesGLOBE IRON ROOFING & CORRUGATING CO. v. THATCHER ET AL.

Appeal from chancery court, Morgan county; THOMAS COBBS, Chancellor.

Bill in equity by the Globe Iron Roofing & Corrugating Company against the Decatur Iron Bridge & Construction Company and others to enforce a mechanic's lien, and also as an unsecured creditor to set aside conveyances on the ground of fraud. The defendant bridge company was insolvent, and had before this bill was filed, conveyed certain property to defendants Thatcher and others, who were made parties defendant. Defendants' demurrers to the bill were sustained. Complainant appeals.

Kirk & Almon, for appellant.

R C. Brickell, for appellees.

MCCLELLAN J.

The bill in this case is filed in a double aspect. In one view the claim sought to be enforced is that of a lienor under section 3018 et seq., of the Code; in the other the right relied on is that of a simple contract creditor. In one aspect it is sought only to enforce the demand of the complainant; in the other it is sought to subject the property of the Decatur Bridge Company to the satisfaction of the claims of other creditors as well as the complainant. In the phase of the case first presented the effort is to subject only certain town lots belonging to the bridge company to the satisfaction of a particular debt; in the phase last presented in the bill the effort is to subject not only these lots, but all the property of the defendant company, to the satisfaction, not only of the complainant's debt, but also of the debts of all other bona fide creditors. By one set of averments it is attempted to make a case in which complainant's claim will be held superior to certain conveyances made by the bridge company to, or which inured to the benefit of, the other defendants; by other allegations the attempt is made to have these conveyances-which in this part of the bill are treated as nominally superior to complainant's claim-declared void as to the debt of complainant and other bona fide creditors. It thus appears that whether regard be had either to the character or amounts of the claims involved in the respective aspects of the bill, or to the quantity of property to be effected by the decree, or to the character or extent of the relief sought in the two presentments of the cause of action, there is a manifest dissimilarity, repugnance, and inconsistency in and between the two parts of the bill of complaint.

The cardinal requirement with respect to bills framed in the alternative is that each alternative must entitle the complainant to precisely the same relief in kind, if not in degree, so that, if the bill be confessed, the court, in decreeing the relief prayed on one state of facts, would also respond and grant the relief appropriate to the alternative state of facts. That the relief which would be appropriate to either of the alternatives of this bill would be entirely inappropriate to the other we entertain no doubt. Lehman v. Meyer, 67 Ala. 403; Micou v. Ashurst, 55 Ala. 607; Heyer v. Bromberg, 74 Ala. 528; Gordon v. Ross, 63 Ala. 363; Moog v. Talcott, 72 Ala. 210.

The complainant was an original contractor within the meaning of the statute giving to mechanics and material-men liens on buildings or improvements to the making or erection of which they have contributed labor or material, and had six months from the accrual of the debt involved in this suit in which to file a verified statement of the claim in the office of the probate judge of Morgan county. We do not understand that it is seriously denied that the statement required by section 3022 of the Code was filed within six months after the debt accrued. It is, however, strenuously insisted that the statute was not complied with in respect to the verification of the statement so filed. The section last referred to requires that the statement must "be verified by the oath of the claimant, or some other person having knowledge of the facts."

It is thoroughly well settled in principle and by the adjudged cases that liens of this class are dependent for their vitality upon a strict compliance in all matters of substance with the provisions of the statutes under which alone they have any existence. There is deemed no inequity, says Mr. Phillips, in this strict adherence to the requirements of the law, in view of the fact that the lienor claims by the terms of the enactment to fasten an extraordinary right on the lands of another with priority over all other creditors. The claimant must seek his lien under the statute, and in accordance with its terms, or not at all. Phil. Mech. Liens, §§ 10, 297; Chandler v. Hanna, 73 Ala. 394.

The verification of the statement filed in this case was made by an officer of the claimant corporation. It may be conceded that under the circumstances an officer of the incorporated company is to be considered "the claimant," within the meaning of the clause quoted above, and does not come within the term, "other person having knowledge of the facts." It may be further conceded that when the statutory affidavit is made by the claimant himself, it need...

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52 cases
  • Gill v. More
    • United States
    • Alabama Supreme Court
    • 14 Junio 1917
    ...grant the relief appropriate to the alternate state of facts. Code 1907, § 3095; Curry v. Peebles, 83 Ala. 225, 3 So. 622; Globe Co. v. Thacher, 87 Ala. 458, 6 So. 366; Bentley v. Barnes, 155 Ala. 659, 47 So. Bellevue Cem. Co. v. McEvers, 168 Ala. 535, 53 So. 272; Dixie Grain Co. v. Quinn, ......
  • Robertson v. State
    • United States
    • Alabama Court of Appeals
    • 16 Diciembre 1924
    ... ... 623; Dennis v ... Coker, 34 Ala. 611; Globe Iron Roofing & Corrugating Co ... v. Thacher, 87 Ala ... Seaton, 61 Iowa, 563, 16 N.W. 736; Ex parte ... Thatcher, 2 Gilman (Ill.) 167 ... The ... reason for the ... ...
  • Crane Co. v. Epworth Hotel Construction & Real Estate Co.
    • United States
    • Missouri Court of Appeals
    • 11 Diciembre 1906
    ... ... 146; Nordine v ... Knutson, 62 Minn. 264; Iron Roof & C. Co. v ... Thacher, 87 Ala. 458; Grey v ... Supreme Court of Alabama in Globe Iron Roofing and ... Corrugating Co. v. Thatcher, 87 Ala ... ...
  • Ready v. Smith
    • United States
    • Missouri Supreme Court
    • 18 Noviembre 1902
    ... ... 405; Hollins v. Brierfield ... Coal & Iron Co., 150 U.S. 371; LaGrange Button Co ... v. Bank, 122 ... Railroad 102 U.S. 148, 26 L.Ed. 106; Globe Co. v ... Thatcher, 87 Ala. 458, 6 So. 366; O'Conner Co ... ...
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