Smith v. Barnes

• Decision Date: 17 February 1888
• Citation: 38 Minn. 240
• Parties: H. ALDEN SMITH and others <I>vs.</I> W. A. BARNES, impleaded, etc.
• Court: Minnesota Supreme Court

Page 240

38 Minn. 240

H. ALDEN SMITH and othersvs.

W. A. BARNES, impleaded, etc.

Supreme Court of Minnesota.

February 17, 1888.

Appeal by plaintiffs from an order of the district court for Hennepin county, Lochren, J., presiding, sustaining the demurrer of the defendant Barnes (impleaded with Thomas W. Brooks and others) to the complaint. It appears from the complaint that the materials for which a lien is sought were furnished between May and November, 1886, and that the affidavit for lien was filed in January, 1887.

E. C. Chatfield, for appellants.

Davenport & Thian, for respondent.

COLLINS, J.

General demurrer, which was sustained in the court below, to an amended complaint in an action to foreclose a lien claimed for materials furnished for the erection of a dwelling-house.

The complaint, in a somewhat discursive manner, sets forth that defendants B. & C., then owners of a certain lot, numbered 5, in the city of Minneapolis, purchased of plaintiffs materials for the erection of a dwelling upon said lot; that thereafter, believing the dwelling then being constructed to be upon said lot, defendant Barnes, who alone interposed this demurrer, took a mortgage thereon for much more than the value of the naked lot; that by mistake the house was erected upon the adjoining lot 6, instead of upon 5, and that said lot 6 was owned by one Crandall, up to the time when sold by him to the defendant Barnes, as hereinafter stated; that until some time after the house was built, all of these parties supposed it to be on lot 5, as intended, but on discovering the error in location said Barnes bought the lot numbered 6 of its owner, Crandall, paying therefor no more than the value of the lot. There are also further allegations as to the value, balance yet due, making and filing of the affidavit for a lien, etc., which need not be specially mentioned, except to say that the complaint does not disclose what property was described in the affidavit on which it is claimed the lien can operate, although the relief demanded in the pleading is that the amount found due plaintiffs be declared a lien upon the house, presumably a fixture erected upon the land of a stranger, and also upon lot 5, on which, as before stated, no house has been constructed, and no part of plaintiffs' materials used.

It is the questions suggested by this demurrer which we are called upon to answer. Notwithstanding the statement in the complaint that the house is now the property of said B. &...