Leiper v. Minnig

• Decision Date: 18 March 1905
• Citation: 86 S.W. 407,74 Ark. 510
• Parties: LEIPER v. MINNIG
• Court: Arkansas Supreme Court

86 S.W. 407

74 Ark. 510

LEIPER v. MINNIG

Supreme Court of Arkansas

March 18, 1905

Appeal from Pulaski Circuit Court, Second Division, JOSEPH W MARTIN, Judge.

Reversed.

STATEMENT BY THE COURT.

Upon the 5th day of December, 1901, the appellants filed the following complaint in the Pulaski Circuit Court against the appellee, R. D. Minnig, and J. G. Huber.

"The plaintiffs state that they are partners in business and material men, under the style of Leiper & Mills; that on the 1st day of September, 1901, said Minnig made a contract with one J. G. Huber to construct and build a sidewalk for him upon the south fifty feet of lots 7, 8 and 9, in block 15, in Masonic Addition to the city of Little Rock, Arkansas, and being No. 1223 Barber avenue, in said city; that said Huber constructed and built said sidewalk for said Minnig upon that portion of said lots which is used as a public sidewalk in front of said lots on Barber avenue, and purchased of said plaintiffs the cement which he used in its construction to the value of $ 24, which has not been paid, which purchase was made on the 6th day of September, 1901; that on the 13th day of November, 1901, they gave said Minning notice in writing that they had furnished for the purposes aforesaid said materials to said Huber, and that they claimed a lien on said lots and improvement for the same, including his rights to said sidewalk and the land under the same; that on the 2d day of December, 1901, they duly filed their lien upon said property and improvement in the office of the clerk of this county, stating the facts aforesaid and claiming a lien upon said property for the payment of said claim of $ 24. They further state that before they gave said notice to said Minnig, and before they filed their said claim of lien, said Minnig fully paid said Huber for constructing said sidewalk and without first paying for said materials to said plaintiffs, who furnished the same with the knowledge of said Minnig.

"Wherefore they demand judgment against said Minnig and Huber for said sum of $ 24 and interest and costs; and, further, that the same be declared a lien upon said lots and his interest in said improvements, and that the same be adjudged to be sold to satisfy said claim."

On the 5th day of December, 1901, the defendant filed a demurrer, as follows:

"Comes the defendant, R. D. Minnig, and demurs to the complaint herein, and for cause says that it does not state facts sufficient to constitute a cause of action, and that the plainiff did not make contractor Huber a party to this suit."

The cause was submitted to the court upon these pleadings, and after the argument the court sustained the demurrer, and, the plaintiff electing to stand upon the decision, gave judgment for the defendant for costs, and dismissed the complaint. To this ruling the plaintiff at the time excepted, and took an appeal to this court.

Judgment reversed and cause remanded.

Eben W Kimball, for appellants.

The Mechanics' Lien Law of 1895 gives to mechanics and material men a lien upon property for the building of sidewalks around or adjacent to such property. Acts 1895, p 217; 67 Ark. 156; Sand. & H. Dig. § 5313; 49 Ark. 199.

OPINION

WOOD, J., (after stating the facts.)

Has a married man a lien for materials furnished in building a sidewalk upon the lots abutting and on the sidewalk? is the question presented by this appeal. The parts of the statute applicable here are as follows:

"Sec. 4970 (Kirby's Digest). Every mechanic, builder," etc., "or other person who shall do or perform any work upon or furnish any material * * * for any building, erection, improvement upon land * * * under and by virtue of any contract with the owner or proprietor thereof, or his agent, contractor, etc., upon complying with the provisions of this act, shall have for his work or labor done, or materials * * * furnished, a lien upon such building, erection or improvement and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre; or if such building, erection or improvement be upon any lot of land in any town, city or village, then such lien shall be upon such building, erection or improvements and the lots or land upon which the same are situated."

"Sec. 4971. The entire land, to the extent aforesaid, upon which any building, erection or other improvement is situated, including as well that part of said land which is not covered with such building, erection or other improvement as that part thereof which is covered with the same, shall be subject to all liens created by this act, to the extent and only to the extent of all the right, title and interest owned therein by the owner or proprietor of such building, erection or other improvement for whose immediate use or benefit the labor was done or things furnished."

"Sec. 4972. The lien for the things aforesaid or work shall attach to the buildings, erections or other improvements for which they were furnished or work was done, in preference to any prior lien," etc., "existing upon said land before said buildings, erections, improvements," etc., "were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter," etc.

This court, prior to the passage of the act under consideration, had construed the words "other improvement" in the mechanics' lien law then in force as meaning a similar improvement to those specially mentioned in the same section immediately preceding, under the familiar rule of "ejusdem generis". Guise v. Oliver, 51 Ark. 356, 11 S.W. 515.

The Legislature of 1895, cognizant of the construction of the prior law, took up the...