McConnell v. Worns

Decision Date13 February 1894
Citation102 Ala. 587,14 So. 849
CourtAlabama Supreme Court
PartiesMCCONNELL v. WORNS.

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Ed. C. Worns, doing business under the firm name of E. C Worns & Co., against H. L. McConnell and Stoner & Co., to recover for labor performed, and materials furnished, in the erection of a house owned by defendant McConnell, and to fasten a lien on the house and lot. From a judgment for the plaintiff, defendant McConnell appeals. Affirmed.

The suit was originally commenced in the court of a justice of the peace, and as styled in the complaint the suit was against "H. L. McConnell and Matthew T. Stoner and C. E Bryan, late partners in business under the name of Stoner &amp Company." The summons was issued on November 22, 1892 and the same was marked executed on the said Bryan, December 1, 1892, and on McConnell December 9, 1892. There was no service upon Stoner. In the justice of the peace court judgment was rendered in favor of the plaintiff "against Stoner and Bryan and H. L. McConnell for $83.00, $15.00 attorney's fees, and costs of this proceeding, and the same is declared a lien on the following property." (Describing the lot upon which the house was erected for McConnell.) From this judgment an appeal was taken to the city court by H. L. McConnell. In the city court the defendant H. L. McConnell filed his plea in abatement setting out the summons and complaint issued and filed in the justice of the peace court, and also the entry of judgment of the justice of the peace, which is copied above. And the defendant alleged in said plea that the facts set forth by the summons and complaint, and the judgment, show that the said cause of action was discontinued, and judgment rendered against this defendant was invalid. To this plea in abatement the plaintiff demurred on the ground (1) that the plea was no answer to the complaint, or any part thereof. (2) That the said plea was not filed by Stoner & Co. or by either member of said company. (3) That said plea was filed after the said McConnell had appealed the cause to the city court, thereby waiving such defects as he complained of, and by such acts he was estopped from making such objections. (4) That the alleged defects in the judgment entry of the justice of the peace court constitute no defense to this action in the city court, as in said city court, under the law, the case is triable de novo. This demurrer was sustained, and the defendant McConnell then demurred to the complaint on several grounds, the principal of which are sufficiently stated in the opinion. This demurrer was overruled, and the defendants then pleaded as follows: (1) A denial of the allegations of the complaint. (2) That at the time the plaintiff gave notice to the defendant that he looked to his lien on the building owned by the defendant for payment of his claim, the defendant was not indebted to the contractors for the building or improvements erected on his lot. (3) That at the time the notice was given to the defendant, that the plaintiff looked to his lien on the building, the defendant had paid the full amount he had contracted to pay to the contractors for the erection of said building, and that he had paid the said sum on pay rolls for labor done upon said building, furnished to him by said contractors; and to material men on bills furnished by said contractors for material used in said building, and that the defendant paid each of said bills and pay rolls in full as presented. (4) That the contractors did not complete the building to be erected by them in accordance with the terms and provisions of their contract with the defendant; that the defendant paid the expenses for completing the said building in accordance with said contract; and that under said contract he was entitled to certain liquidated damages, if the contractors failed to complete the building at a specified time; and that after a deduction of said several sums from the contract price for the erection of said building, the defendant had paid out the full amount, and more than was contracted for. The plaintiff demurred to these pleas as follows: To the second plea, because the same is no answer to the complaint. To the third plea on the ground that the plea fails to allege that before making any payment under the contract with Stoner & Co. the defendant demanded of the said contractors a complete list of all the material men, laborers and employes who had furnished materials or performed any labor or service, in and about the erection of said building, under any contract, with the contractors; and also failed to allege that he paid such amounts due said contractors to persons named in such a list. Fourth. The plea was demurred to on the same ground as the third. The demurrers to these pleas, respectively, were sustained, and the defendant excepted. Upon motion of the plaintiff, it was ordered by the court that the cause be discontinued as to the defendant Matthew T. Stoner, who had not been served with process, and the defendant C. E. Bryan in open court, consented to proceed with the trial, of the cause in the city court. The facts of the case, in reference to the contract for the erection of the house, between Stoner & Co. and the defendant H. L. McConnell, are substantially the same as those found in the case of Hardware Co. v. McConnell, 14 So. 768. The plaintiff in this case sued for a balance due him for plumbing, which work was done under a contract with Stoner & Co. The other necessary facts are sufficiently stated in the opinion of this case. The cause was tried without the intervention of a jury, and upon the hearing of all the evidence, the court rendered judgment for the plaintiff.

E. J Smyer, for appellant.

Hibbard &...

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10 cases
  • Shipp v. Shelton
    • United States
    • Supreme Court of Alabama
    • 3 juin 1915
    ...... So. 988; Ala. S. & W. Co. v. Sells et al., 168 Ala. 547, 52 So. 921; McCarver v. Doe ex dem. Herzberg, 135 Ala. 542, 33 So. 486; McConnell v. Worns, 102 Ala. 587,. 14 So. 849; Kennedy v. Pickering, Minor, 137; 7. Mayfield's Digest, 645. . . Motion. for a new trial, ......
  • Brown v. Oldham
    • United States
    • Supreme Court of Alabama
    • 12 mai 1955
    ...Downer v. First Nat. Bank in Fort Payne, 231 Ala. 523, 165 So. 758; Ballenger v. Ballenger, 208 Ala. 147, 94 So. 127; McConnell v. Worns, 102 Ala. 587, 14 So. 849. We think it well to point out, however, that the holding in the Murray and Thomasson cases, supra, does not apply to tort cases......
  • Dixie Lumber Co. v. Young
    • United States
    • Supreme Court of Alabama
    • 1 mai 1919
    ......503,. 20 So. 65. . . . Section 2 1/2 of the act of February 12, 1891 (Acts 1890-91,. p. 578), referred to in the case of McConnell v. Worns, 102 Ala. 587, 14 So. 849, cited by counsel for. appellant, was expressly repealed by section 9 of the act of. February 18, 1895 (Acts ......
  • McCarver v. Herzberg
    • United States
    • Supreme Court of Alabama
    • 21 janvier 1903
    ...... Kennedy v. Pickering, Minor, 138; McRory v. Vinzant,. Id. 401; Ex parte Hall, 47 Ala. 675; Reeves v. State, 96 Ala. 33, 11 So. 296; McConnell v. Worns, 102 Ala. 587, 14 So. 849. The motion to strike. the bill of exceptions must, therefore, be overruled. . . This. brings us to ......
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