Lavergne v. Evans Bros. Const. Co.

• Decision Date: 07 April 1910
• Citation: 166 Ala. 289,52 So. 318
• Parties: LAVERGNE v. EVANS BROS. CONST. CO.
• Court: Alabama Supreme Court

52 So. 318

166 Ala. 289

LAVERGNE v. EVANS BROS. CONST. CO.

Supreme Court of Alabama

April 7, 1910

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by the Evans Bros. Construction Company against L. B Lavergne, administrator of L. N. Archer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sterling A. Wood, for appellant.

E. C Crow, for appellee.

SAYRE J.

Suit was brought on February 13, 1909, against the appellant as the administrator of the estate of L. N. Archer, deceased. The complaint, after elimination of the common counts by amendment, went upon a special contract for the agreed price of materials furnished and work done under a contract with the deceased, and for the enforcement of a mechanic's and materialman's lien under the statute. Code, §§ 4754-4784. The complaint, as thus amended, alleged that the contract had been entered into and materials had been furnished and work done for the erection, etc., of a certain building on a lot therein described, on October 27, 1908. In addition to the general issue, a special plea was interposed setting up a decree of the probate court, rendered March 16, 1909 declaring the estate of defendant's intestate to be insolvent, and to this plea the court sustained a demurrer.

The mechanic or materialman who furnishes labor and material is entitled to pursue in one action his lien and a general judgment against the contracting owner or, in a proper case his personal representative, though he may have only one satisfaction. On a complaint, fashioned as was the complaint in this case, the plaintiff may have a judgment of both characters, or, failing to establish his lien, may have a personal judgment only. Bedsole v. Peters, 79 Ala. 133. Under the statute the lien of mechanic and materialman attaches from the commencement of the building or improvement, subject, however, to be defeated and lost if the claim be not verified and filed with the judge of probate within the time prescribed. Welch v. Porter, 63 Ala. 225. The complaint alleged a contract with the owner in his lifetime, the performance of work and labor upon, and the furnishing of material for, the building, on October 27, 1908, and the filing of a verified statement on November 28th of the same year. To that aspect of the complaint which sought a lien the plea of insolvency was therefore no answer. Nor could it operate as a plea in bar to so much of the complaint as sought or would justify a judgment running against the goods and chattels of the decedent which might come into the hands of his personal representative, since it averred a declaration of insolvency after suit brought; nor was it intended to have that effect. The only effect of such a plea in answer to the last-mentioned aspect of the complaint is that, if judgment be rendered on other issues against the personal representative, execution cannot issue, and the judgment must be certified for allowance to the probate court. Code, §§ 2793-2796; Shiver v. Rousseau, 68 Ala. 564. While the plea of insolvency pending the suit was not a good plea in bar for the reason indicated, as well as for the reason that it did not answer the entire complaint nor any certain part of it, it was something more...