Mouat Lumber & Investment Co. v. Freeman

• Decision Date: 09 December 1895
• Citation: 7 Colo.App. 152,42 P. 1040
• Parties: MOUAT LUMBER & INVESTMENT CO. v. FREEMAN et al.
• Court: Colorado Court of Appeals

42 P. 1040

7 Colo.App. 152

MOUAT LUMBER & INVESTMENT CO. v. FREEMAN et al.

Court of Appeals of Colorado

December 9, 1895

Appeal from district court, Arapahoe county.

Action by the Mouat Lumber & Investment Company against Thomas Freeman and others to foreclose a mechanic's lien. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed.

Doud & Fowler, for appellant.

S.A Osborn, for appellees.

THOMSON J.

This proceeding was instituted to enforce a mechanic's lien for material furnished in the construction of certain buildings upon land belonging to the defendant Thomas Freeman, pursuant to a contract between him and the plaintiff. A demurrer to the complaint was sustained, and final judgment entered accordingly. The plaintiff appealed.

The complaint contains the lien statement in full, and the reasons for sustaining the demurrer, as set forth in the judgment, are that the statement does not show either the first or last date upon which the plaintiff furnished the material, and gives no data from which it can be ascertained whether or not it was filed for record within the time limited by the statute after the furnishing of the last material. The material was furnished and the statement prepared after the enactment of the lien law of 1889, and the statement was evidently designed to meet its requirements. It seems, from what counsel for the respective parties say in their arguments, that the lower court had in another case decided that the law of 1889 was unconstitutional, in that the provisions of the constitution were not observed in its passage, and therefore tested the statement in question by the act of 1883, which was held to be in force. In what respect the legislature failed in the passage of the act, we are not advised.

Counsel for the defendants says that at the hearing upon the demurrer the opposing counsel conceded the unconstitutionality of the statute of 1889, and intimates that in now taking a contrary position they are guilty of unfairness. It is not competent for counsel to stipulate the unconstitutionality of a law.

No reasons have been given why we should hold this invalid, and we must therefore regard it as being in force, and the case at bar governed by it.

There is nothing in the act of 1889, nor, for that matter, in the statute of 1883, requiring a mechanic's lien statement to show when either the first or the last material was furnished. The...