Hicks v. Tate
| Decision Date | 24 April 1942 |
| Docket Number | 2374. |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | HICKS v. TATE. N.O. NELSON CO. v. SAME. |
Appeal from Fourteenth Judicial District Court, Parish of Calcasieu John T. Hood, Judge.
Robert R. Stone, of Lake Charles, for appellants.
Cline Thompson, Lawes & Cavanaugh, of Lake Charles, for appellee.
These two cases were consolidated for trial in the lower court and were also consolidated for argument and submission in this court. The same issues are involved in both.
The plaintiff in one of the suits, Norman F. Hicks, was a sub-contractor of Henning-Miller Lumber Co., Inc., which had entered into a verbal contract with the defendant, Richard C. Tate, to erect a dwelling on a lot of ground in Margaret Place Addition to the city of Lake Charles. The contract which was agreed on sometime prior to October 1, 1932, was for $6,700, and being verbal, obviously it could not be and never was recorded. At about the time the contract was made, the main contractor Henning-Miller Lumber Co., Inc., sub-let the necessary plumbing work to Norman F. Hicks for the sum of $729. Hicks purchased all plumbing supplies and material from N.O. Nelson Co., plaintiff in the other suit, the same amounting to the sum of $450 and he assigned to that company $400 of the amount coming to him on his sub-contract. He had been paid the sum of $150 and claims that there is still due $579 on the contract.
In his petition, Hicks alleges that on May 11, 1939, he filed and had recorded in the mortgage records of Calcasieu Parish, an affidavit setting forth the foregoing facts with a statement of his claim thereto annexed, both of which, he further alleges were recorded on May 17, 1939.
On January 17, 1940, he instituted the present suit against the defendant who was the owner of the property at the time, stating further in his petition that he had not been paid the balance due him on his contract. N.O. Nelson Company joined him in his suit setting out its assignment by him of part of the amount due. Judgment is asked for against the defendant with recognition of the lien which is accorded contractors, materialmen, and laborers under Act 298 of 1926 as amended by Act 323 of 1938, on the basis of the alleged recordation of the affidavit, which, it is contended, operated as such lien against the building and property.
There was some preliminary pleas and motions filed by the defendant, some apparently not having been acted upon by the court but one of which had the effect of making N.O. Nelson Company withdraw as a party plaintiff and forcing it to file an independent suit in which it sets out in its petition that it furnished the plumbing supplies that went into the job to the amount of $450.00, had the necessary affidavit recorded on May 18, 1939, and asked for judgment against the defendant for the full amount of its claim with recognition of its lien and privilege. As the result of what transpired, there are now two suits having the same issues except that in the suit of N.O. Nelson Company the plaintiff asks that its assignment from Norman F. Hicks to the extent of $400 of the amount of its claim be recognized and enforced.
The defense in both suits consists principally of a plea of prescription, or properly speaking one of peremption of one year under Section 12 of Act 298 of 1926, as amended by Act 323 of 1938, a plea of estoppel based on an acknowledgment of payment and of waiver of his lien and privilege alleged to have been executed by Hicks in order to enable the defendant to place a mortgage on the property, and also a denial of the indebtedness claimed, as well as of the right to a lien and privilege, as it is contended that the affidavit relied on by the plaintiff had not been timely recorded. Defendant plead, in further defense, that the Act 298 of 1926, as amended by Act 323 of 1938, is unconstitutional in so far as it purports to grant to the materialman or laborer the right to a personal judgment against the owner of the property on which the lien operates.
At first there was judgment below rejecting the demands of the plaintiffs for recognition and an enforcement of the liens and privileges claimed, but granting each a personal judgment against the defendant, that for the plaintiff, Norman F. Hicks, being in the sum of $129, and that in favor of N.O. Nelson Company in the sum of $450. On rehearing however, the judgment in each case was set aside and judgment was rendered in favor of the defendant rejecting the demand of each plaintiff. A devolutive appeal was taken in each case.
The plaintiffs have now abandoned their claim for recognition of a lien and privilege and are restricting their demand to me for a personal judgment against the defendant. It is to such a demand that the defendant has interposed the plea of one year's prescription or peremption under the statute, the pertinent provisions of which are to be found in Section 1 of the amending Act 323 of 1938 and from which we quote as follows: ...
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...a party claiming the benefit of one must show that he has complied strictly with the provisions of the law which created it. Hicks v. Tate, La.App., 7 So.2d 737; Moore Steel, Inc. v. Wright's Succession, La.App., 79 So.2d 118; Patterson v. Lumberman's Supply Co., Inc., La.App., 167 So. 471.......
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... ... Lecompte, Hall & Coltharp, DeRidder, for appellant ... Kay & Kay, DeRidder, for appellee ... TATE, Judge ... The Central Plumbing and Heating Company, a partnership, appeals from judgment rejecting its claim for payment for ... H. M. Jones Drilling Co., 177 La. 626, 148 So. 899; Hicks v. Tate, La.App., 1 Cir., 7 So.2d 737; Bailey & Sons v. Western Georgraphical Co., La.App., 66 So.2d 424; ... Electrical Contracting Co. v. Brown, ... ...
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