Sanitary Plumbing Co. v. Simpson

• Decision Date: 15 November 1917
• Docket Number: 8 Div. 58
• Citation: 200 Ala. 590,76 So. 948
• Parties: SANITARY PLUMBING CO. v. SIMPSON et al.
• Court: Alabama Supreme Court

76 So. 948

200 Ala. 590

SANITARY PLUMBING CO. v. SIMPSON et al.

8 Div. 58

Supreme Court of Alabama

November 15, 1917

Appeal from Circuit Court, Morgan County; R.C. Brickell, Judge.

Suit by the Sanitary Plumbing Company against Mary D. Simpson individually and as executrix, and others. From a judgment for defendants, plaintiff appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

Eyster & Eyster, of Albany, for appellant.

E.C Nix and Tennis Tidwell, both of Albany, for appellees.

GARDNER J.

Plaintiff (appellant here) brought suit against the appellees for the purpose of establishing and enforcing a mechanic's and materialman's lien upon a two-story brick residence in Decatur, Ala., as provided by article 1, c. 107, Code 1907. The contract, as disclosed by the complaint, for the erection of this dwelling, was entered into by W.H. Simpson, now deceased, with one Ross as the original contractor, and the plaintiffs then entered into a contract with said Ross for the installation of the plumbing in this building. The suit was originally brought against said Ross, the contractor, and Mary D. Simpson as executrix of the estate of W.H. Simpson deceased, and also against her individually; but when the cause was called for trial the complaint was amended by striking out said Ross as a party defendant. The trial resulted in a judgment for defendant, and the only assignments of error here insisted upon are those relating to the action of the court in sustaining demurrer to some of the counts of the complaint as originally framed.

The first assignment of error insisted upon relates to the sustaining of demurrer of Mary D. Simpson as executrix to count 4. While this count shows the original contract for the erection of the building was between W.H. Simpson and said R.G. Ross, with a balance due to said Ross by said Simpson and the contract on the part of the plaintiff with said Ross, with a balance due plaintiff thereunder, yet it fails to allege that W.H. Simpson was the owner or proprietor of the property, or, in fact, who was the owner or proprietor of the same. This point was taken by several of the assignments of demurrer, and doubtless the action of the court was based largely thereon.

In Cook v. Rome Brick Co., 98 Ala. 409, 12 So. 918, it was held that, in actions of this character, the facts necessary to the creation of a lien must be alleged and proven, and indeed such is the language of section 4765 of the Code of 1907. We think it clear that the complaint should allege who was the owner or proprietor of the property upon which the lien is sought to be established. Section 4754 et seq., Code 1907; Wadsworth v. Hodge, 88 Ala. 500, 7 So. 194; Hawkins Lumber Co. v. Brown, 100 Ala. 217 14 So. 110; First Ave. C....