Smith v. Eureka Lumber Co.

• Decision Date: 01 June 1912
• Citation: 149 S.W. 747
• Court: Texas Court of Appeals
• Parties: SMITH v. EUREKA LUMBER CO.

149 S.W. 747

SMITH v. EUREKA LUMBER CO.

Court of Civil Appeals of Texas. Amarillo.

June 1, 1912.

Appeal from District Court, Dallam County; D. B. Hill, Judge.

Action by the Eureka Lumber Company against W. W. Smith and another, in which T. A. Hilburn and others intervened. From a judgment for interveners, defendant Smith appeals. Reversed and remanded.

R. E. Stalcupp, of Dalhart, for appellant. Durell Miller, of Channing, for appellees.

PRESLER, J.

In this case appellees sued appellant, together with one G. W. Peoples, to recover a debt of $46.20 on an account for lumber and building material furnished appellees and used in the repair of a certain building, located on lots Nos. 19 and 20, in block 52, in Dalhart, Tex., and for foreclosure of an alleged materialman's lien on said building, and alleging, as to the defendant Peoples, that he was claiming some sort of a lien on said property, and sought to have the question of priority of said lien decided in said suit. Thereafter, and before judgment rendered in said cause, the appellees, T. A. Hilburn, John McMurry, and A. C. Morgan, by leave of the court, intervened in said suit, claiming that they had furnished the material referred to in plaintiff's pleadings, and that they were the owners of the debt sued on and of the lien asked to be foreclosed on said building. The appellant, Smith, in the court below, answered, among other things, by a plea to the jurisdiction of the court, alleging that plaintiff's petition showed no facts which gave the court jurisdiction, and also by a general demurrer and general denial, and to interveners' pleadings answered by a plea in abatement, presenting again, in substance, his plea to the jurisdiction of the court and further by general demurrer. The court, upon a trial of the case, overruled appellant's plea to the jurisdiction and his demurrers and proceeded to try the case upon its merits, no jury being had, and rendered judgment in favor of said interveners, these appellees, T. A. Hilburn, John McMurry, and A. C. Morgan, in the sum of $46.20, and declared a lien in favor of said appellees on the building hereinbefore referred to, foreclosed the same, awarded to appellees an order of sale of said building, directing the officer executing such process to place the purchaser of said building in possession thereof, and allowed said purchaser to remove said building from the lots on which it was situated, without further order of court, adjudged the question of...