83 Mo. 313 | Mo. | 1884
This suit was commenced on the 28th day of February, 1879, by filing the following petition : “Plaintiff states that the defendant owes him 897.80,, an itemized account of which is herewith filed. (It may be remarked just here that this account has no date-except 1878.) That said Jane E. James is a minor. That said indebtedness accrued on account of labor done and material furnished in and upon a frame dwelling house, one and one-half stories high, etc. (Here follows a full description of the house.) Said building is situated upon the following described parcel of ground, in the county of Phelps aforesaid, to-wit: Beginning at the northeast corner of said house, in the northwest quarter of the northeast quarter of section 5, in township 38, range 8-west, running thence from said northeast corner of said!
The defendant answered by guardian, ad litem, in' which the indebtedness on any account is denied. Denies • that the account accrued on account of labor performed or material furnished at her request or at the request of any one by her authorized to make such request or contract, and alleges that she has no knowledge, etc., as to-whether plaintiff had filed his alleged mechanic’s lien, etc., and demanded proof.
• I. The first question for consideration is the sufficiency of the petition. It is urged by the appellant that the petition does not contain the necessary allegations to-constitute a cause of action. There being no appearance-here on the part of the respondent the court is left in the-dark as to his position. Sec. 3176, Rev. Stat., 1879, provides that every original contractor, seeking to obtain' the benefits of a mechanic’s lien, shall “within six.
The petition alleges that within six months from the date of furnishing the materials and performing the labor he filed his statement and account, etc., but it fails to state the date of the last item of the account or the date of filing the statement, and there is no basis from which to proceed. The time of filing is certainly material. Also, the date at which the materials were furnished and the labor performed. Because, to create a lien it must be filed within 6 months after the labor is performed or materials furnished, and the suit must be brought withip ninety days after filing the statement, etc. • So that, unless these facts be found by the jury, no lien can exist, and if not alleged they cannot be proven. In Heltzell v. Langford, 33 Mo. 396, this court say: “The time of filing is a material, issuable fact, which must be alleged and without which the petition will not show a cause of action. It is not enough to aver the filing of the demand without an averment of the time when ; for a filing at the’ wrong time is as inefficacious as if not filed at all. The petition should therefore show
Williams v. Porter, 51 Mo. 441.
II. The bill of exceptions in this case does not show that the plaintiff offered in evidence the statement, account and affidavit required and alleged to have been filed with the clerk. There was no evidence tending to show when it was filed, or whether it was ever filed,, without which no jury could legally say that a lien existed and the court ought to have instructed the jury to' that effect. 51 Mo. 441.
III. Notwithstanding the fact that the above view will reverse the case, yet we deem it not inappropriate to-refer to the objection made to the petition on account of alleged insufficient description of the land sought to be-subjected to the lien. It is insisted by the appellant that the land as described is in excess of one acre and therefore the judgment must be reversed. It would seem from 46 Mo. 595, in the case of Oster v. Rabeneau, a different rule was laid down. In discussing the question as to-whether an excess of land over one acre included in the-description would void the lien, Currier, J., says : ‘ ‘ All it (the statute) requires, therefore, is that the lienor shall furnish, in filing his lien, such a description as will be sufficient to point out and identify the property. It provides that the lienor shall file a true description of the property, or so near as to identify the same. * * * If it was made sufficiently full and accurate to furnish the means of identification that was sufficient. If it in-
As it is not necessary for the determination of this case, we do not pass upon the sufficiency of this description, but only remark that from the description as made in the petition and judgment it would appear to be ■ difficult to identify this land, whatever one might be able to do upon an actual inspection of the premises. But, ■ even if the land described could, upon actual survey, be located and identified, yet it seems pretty cle'ar that the description as used would contain more than one acre, the quantity of land to which a mechanic’s lien may .attach in the country, and unless the trial court can as- • certain the specific acre so as to identify it as that upon which the building is located, no intelligent judgment could be rendered. Williams v. Porter, 51 Mo. 441. The description is by specific metes and bounds, but some of !it is without course or distance, and nothing but an 'actual survey could fix the location or quantity of said land. As the plaintiff may desire to amend his petition we make these suggestions for his future guidance. Let the judgment be reversed and the cause remanded.