Heltzell v. Langford

• Decision Date: 31 March 1863
• Citation: 33 Mo. 396
• Parties: MICHAEL D. HELTZELL, Respondent, v. JAMES P. LANGFORD, et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 396

MICHAEL D. HELTZELL, Respondent,

v.JAMES P. LANGFORD, et al., Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Law Commissioner's Court.

I. T. Wise, for respondent.

This was a cause wherein plaintiff sues the defendants Langford & Stephenson as contractors and Randall and Hohenschild as owners of a building to enforce a lien for the value of materials, &c., used in the construction of the same.

By the evidence it appears that one Coleman, a sub-contractor, first got the goods and chattels from plaintiff, and the point made by appellant that he (Coleman) should have been joined as a co-defendant is not tenable. The statutory defendants being joined, is sufficient for the plaintiff to maintain his suit. (Mechanics' Liens, Acts, 1857, § 8.)

There is no error in the record, and plaintiff asks for an affirmance of the judgment, with ten per cent. damages, there being not even probable error to justify this appeal.

R. F. Wingate, for appellants.

I. The plaintiff's petition was insufficient in not alleging that the plaintiff gave the notice required by sec. 18, act of February 14, 1857, he not being an original contractor, and such an allegation being necessary to entitle him to a lien by the 7th section of said Acts, 1857, pp. 669-670, § 8 & 18.

II. Also in not showing when the lien therein mentioned was filed, so that it might have appeared to have been filed within the time required by the 3d sec. of the act above referred to; also in not showing who the contractors for the erection of said building were, as required by said 3d sec. of said act; also in not alleging that the account of lien was filed within ninety days next before the commencement of his suit (sec. 15 of the act above referred to); also in not alleging when the merchandise was sold and delivered.

DRYDEN, Judge, delivered the opinion of the court.

This action was brought under the lien law specially applicable to St. Louis county. (Sess. Acts, 1856-7, pp. 668-9.)

The act provides that in all suits under it “the petition, among other things, shall allege the facts necessary for securing the lien.” One of the requisite facts is that the creditor shall, within a time limited, file an account of his demand in the proper office. The time of filing is a material, issuable fact, which must be alleged and without which the petition will not show a cause of action. It is not enough to aver the filing of the demand without an averment of the time when; for a...