Gray v. McKinley

• Decision Date: 05 October 1949
• Docket Number: 6 Div. 829
• Citation: 43 So.2d 421,34 Ala.App. 630
• Parties: GRAY v. McKINLEY et al.
• Court: Alabama Court of Appeals

Page 421

43 So.2d 421

34 Ala.App. 630

GRAY v. McKINLEY et al.

6 Div. 829.

Court of Appeals of Alabama.

Oct. 5, 1949.

Rehearing Denied Nov. 1, 1949.

H. P. Lipscomb, Jr., and L. Herbert Etheridge, of Bessemer, for appellant.

McEniry, McEniry & McEniry, of Bessemer, for appellees.

Action to enforce a mechanic's or materialman's lien by Barney Gray, doing business as Barney Gray Tin Shop, against R. R. Fields and William M. McKinley. From a judgment of non-suit, plaintiff appeals.

Affirmed.

Count A of the complaint is as follows:

Plaintiff claims of the defendants four hundred twenty-five and 75/100 ($425.75) dollars due by account on, to-wit, the 15th day of September, 1947, the date the building being remodeled was due to be completed (though the last work, labor and material furnished was on the 28th day of August, 1947), together with the interest thereon from the said 15th day of September, 1947, which is past due and unpaid. Plaintiff avers that said account represents material and/or labor furnished by plaintiff under contract with R. R. Fields, the contractor in charge of the remodeling of the building for the defendant, William M. McKinley, owner, which was furnished for and which was used in the construction or improvement or repairs of said real estate of the defendant, William M. McKinley, described as follows: * * *

And plaintiff claims a lien on the balance of the money held by William McKinley called for under said contract of construction of the house by R. R. Fields which remained unpaid on the 10th day of March, 1948, this being the date service was had upon said William McKinley in this cause, and plaintiff prays for a judgment against said William McKinley for the sum of $425.75, if said amount was still retained by said William McKinley under said contract of construction, and if there was not such sum remaining, then plaintiff prays for whatever amount remained unpaid to R. R. Fields under said contract of construction.

Count B is the same as Count A, except that the following is substituted for the last paragraph of Count A, viz:

And plaintiff avers that on the 10th day of December, 1947 he filed in the office of the Judge of Probate of Jefferson County, Alabama, Bessemer Division, a claim or lien, a copy of which is attached to the original complaint in this cause, and marked 'Exhibit A', and made a part hereof, and plaintiff avers that service was had on defendant William McKinley, in this cause, together with a copy of said claim or lien filed in this cause on the 10th day of March, 1948 and that at time of service there remained an unpaid balance of to-wit: $1600.00 under the contract with said R. R. Fields, still in possession or under the control of said William McKinley, and plaintiff claims a lien on said unpaid balance to the amount of $425.75 together with a lien on said real property above described, and plaintiff prays that said lien be established and said real property be condemned for the satisfaction of said indebtedness and same be ordered sold to satisfy said indebtedness, unless same be paid.

HARWOOD, Judge.

The complaint below, filed by a party who was not an original contractor, was to enforce a mechanic's lien on real property owned by the defendant William M. McKinley, allegedly arising out of the installation of a furnace on said property by R. R. Fields, a general contractor.

The complaint was originally in one count. Demurrers being sustained to this count the complaint was amended by adding counts A and B.

Demurrers were filed to these counts, and by the court sustained. The plaintiff thereupon took a nonsuit and perfected his appeal to this court.

The fourth ground of said demurrers is that:

'For it does not appear that this defendant was ever given notice required by law to fasten a lien on the premises described in the complaint.'

A mechanic's and materialman's lien exists by virtue of Section 37, Title 33, Code of Alabama 1940.

Under Section 41, Title 33 of the Code, it is the duty of every person entitled to such lien to file a verified statement in the office of the probate judge of the county in which the property is situated containing certain information mentioned in said section. Section 42, Title 33 of the Code, sets certain time limits within which the different types of lien claimants must file such notice in the probate office, and the time limit in which suit must be brought for the enforcement of such lien.

Where the lien is claimed by other than the original contractor, Section 46, Title 33, of the Code, imposes an additional duty on such lien claimant. This section provides:

'Every person, except the original contractor, who may wish to avail himself of the provisions of this article, shall before filing his statement in the office of the judge of probate, give notice in writing to the owner or proprietor, or his agent, that he claims a lien on such building or improvement, setting forth the amount thereof, for what, and from whom it is owing; and after such notice, any unpaid balance in...