Van Horn Trading Co. v. Day

• Decision Date: 05 June 1912
• Citation: 148 S.W. 1129
• Parties: VAN HORN TRADING CO. v. DAY et al.
• Court: Texas Court of Appeals

148 S.W. 1129

VAN HORN TRADING CO. v. DAY et al.

Court of Civil Appeals of Texas. San Antonio.

June 5, 1912.

Appeal from District Court, Culberson County; Jas. R. Harper, Judge.

Action by the Van Horn Trading Company against J. R. Day and others. From a judgment transferring the case on a plea of privilege, plaintiff appeals. Affirmed.

Joe Irby, of Van Horn, and R. M. Reed, of El Paso, for appellant. S. W. White, of Van Horn, Chilton & Chilton, of Dallas, and C. W. Croom, of El Paso, for appellees.

FLY, J.

This is an appeal from a judgment of the district court of Culberson county, by which the suit of appellant on an account and laborer's lien against Geo. E. Darsey, J. R. Day, and Levi Anderson was on the plea of privilege of the latter two transferred to the district court of Tom Green county. Appellant sued on an account alleged to be due for the services and work of Geo. E. Darsey in building certain houses in Van Horn, Culberson county. The account, with a lien on the houses, had been sold and transferred to appellant by Darsey. The account was attached to and made a part of the petition, and was for $1,033.90. The account was for wages due Geo. E. Darsey, his four sons, and Roy Lavell, with the exception of $300 for "meals provided at opening," $25 for "lodging," $60.10 for "sundry expenses," and $27.35 for "over bill." Darsey swore to his account to fix the lien on the houses on May 22, 1911, and filed the same on May 24th. In his affidavit he stated that the amount of the account was due on February 15, 1911, more than three months before the affidavit was made or the account and affidavit filed. In the plea of privilege, it was alleged that the transfer of the account and lien by Darsey was made to fraudulently confer jurisdiction on Culberson county and that he had been made a defendant for that purpose, and also that Darsey was not a contractor, but a mere day laborer, as shown by the pleadings, and, more than 30 days having elapsed after the debt became due before he sought to fix the lien, he had obtained no lien.

In order to fix and secure a lien by an original contractor, when there is no written contract, he must file an itemized account of his claim, supported by affidavit, within four months from the time when the indebtedness accrued, and, in case of a journeyman, day laborer, or other person, the account must be filed in 30 days from the time the account is due. Article 3295, Rev. Stats. The time limit fixed in the statute is mandatory. Cameron v. Marshall, 65 Tex. 7; Lippencott v. York, 86 Tex. 276, 24 S. W. 275; Claes v. Loan Association, 83 Tex. 50, 18 S. W. 421.

While it is alleged that Darsey was a contractor, the account clearly shows that he was only a day laborer, and consequently was...