Gulf, F. & A. Ry. Co. v. Sharpe

• Decision Date: 15 November 1917
• Docket Number: 1 Div. 961
• Court: Alabama Supreme Court
• Parties: GULF, F. & A. RY. CO. v. SHARPE.

76 So. 856

200 Ala. 530

GULF, F. & A. RY. CO. v. SHARPE.

1 Div. 961

Supreme Court of Alabama

November 15, 1917

Appeal from Law and Equity Court, Mobile County; W.G. McCorvey Judge.

Bill by S.B. Sharpe against the Gulf, Florida & Alabama Railway Company, to enforce a lien for work and labor. Decree for complainant and respondent appeals. Reversed and remanded.

Barnett Bugg & Lee, of Monroeville, for appellant.

C.J Torrey, of Mobile, and C.L. Hybart, of Monroeville, for appellee.

SOMERVILLE J.

The bill seeks to enforce a mechanic's lien on the unpaid balance due on the work from the owner to the contractor in chief. Although it prays for a writ of execution to enforce the payment of his claim, it does not seek to enforce a lien upon the roadway of the railroad company, and hence the first ground of objection to the bill is inapt. We therefore need not determine whether the demurrant's proposition of law in that regard is sound or not. See, however, Buncombe County v. Tommey, 115 U.S. 122, 5 Sup.Ct. 626, 1186, 29 L.Ed. 305, and Powder Co. v. G. & J. Ry. Co., 183 N.Y. 306, 76 N.E. 153, 2 L.R.A. (N.S.) 288, 111 Am.St.Rep. 751, 5 Ann.Cas. 443.

We think it perfectly clear that Gladwell, the subcontractor by whom complainant was employed, is a necessary party to this suit. Whatever part of the unpaid balance may be due to him will be reduced by whatever amount may be here recovered by complainant. Gladwell is therefore directly interested in the fund in question, and will be affected by the decree herein sought, and is entitled as an adversary party to contest both the fact and the amount of complainant's claim; and though respondents could bring him in by way of cross-bill, the duty to make him a party rests primarily upon complainant. Prout v. Hoge, 57 Ala. 28; Harwell v. Lehman, 72 Ala. 344.

Construing the bill more strongly against the pleader, it must be taken as showing that complainant was a mere journeyman or day laborer. So intended, it should appear that the verified statement of complainant was filed, as required by law (Code, § 4758), within 30 days after the accrual of the indebtedness claimed. Cook v. Rome Brick Co., 98 Ala. 409, 413, 12 So. 918; Welch v. Porter, 63 Ala. 225. Otherwise, complainant fails to show an enforceable lien, which he must always show whether the suit be one in law or equity.

For the defects noted above the demurrer to the bill of complaint should have...