Salter v. Goldberg
| Decision Date | 11 April 1907 |
| Citation | 150 Ala. 511,43 So. 571 |
| Parties | SALTER v. GOLDBERG. |
| Court | Alabama Supreme Court |
Appeal from City Court of Bessemer; William Jackson, Judge.
Action by T. M. Salter against Louis Goldberg to establish a mechanic's lien. From a judgment for plaintiff, and an order refusing a new trial, defendant appeals. Corrected and affirmed.
This was an action to enforce a lien upon a house and lot for the sum due for painting said house. The description of the lot is set out in the opinion. The other facts sufficiently appear in the opinion. The lower court gave judgment for the plaintiff against the defendant personally, and also subjected the property to the lien. From this judgment this appeal is taken.
Thomas T. Huey, for appellant.
B. C Jones, for appellee.
The plaintiff testified as to the contract price for painting the house, and was corroborated as to this fact by a disinterested witness, who heard the defendant admit that the price testified to by plaintiff was the amount that he had agreed to pay for the work, and the court properly rendered a personal judgment for the plaintiff for the contract price less the admitted credit. The burden was on the defendant to establish his pleas of set-off, payment, and recoupment, and the trial court properly held that he did not sufficiently do so.
In order to establish a lien on the house and one acre of land or either, as given by the statute, the complaint and judgment must so describe the property as to identify it. In other words, the description should be such as to enable the officer to locate it with some degree of certainty. Neither the complaint nor the verified statement that was filed so describes the one acre upon which a lien is sought with such certainty as would support a judgment declaring a lien thereon. The seven acres is described, but not the one acre. Indeed, the plaintiff's counsel and the trial court realized the imperfection in the description of the one acre and the judgment was amended so as to eliminate the land therefrom. This was properly done, as the judgment was still in the breast of the court, and it cured any error committed by the trial court in declaring a lien on the land or in refusing to grant a new trial. The defendant cannot complain that the plaintiff saw fit to ask for a lien only on the house without the land. It has been held by this court in the case of Bedsole v. Peters, 79 Ala. 135, that the statute gives a lien on the building as well as the land, and that the lien can be enforced against the building, although the description may render it void as to the acre of land; and the statute before us (Acts 1900-01, p. 2115), is not unlike the statute construed in the Bedsole Case, supra.
The complaint and statement filed both...
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...they deem appropriate. We prefer to have the correction made in the circuit court rather than make it here as was done in Salter v. Goldberg, 150 Ala. 511, 43 So. 571, a mechanic's lien case where the description in the judgment was As already indicated, the decision in these causes turns o......
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