Chaffin v. McFadden

| Ark. | May 15, 1883

OPINION.

I. The complaint sufficiently alleged a personal cause of action against both of the defendants. Mrs. Chaffin, by failing to answer, admitted her personal liability, and on the trial the debt was well enough proved against her.

George Chaffin did not deny the debt in his answer, and, as a witness on the trial, he admitted his personal liability for it.

The pei'sonal júdgment against both appellants was, therefore, right.

1. coveotoro¡° Wssentials II. The complaint did not. aver all the facts necessary to-constitute a material-man’s lien on the lots, nor pray judgfor alien. No compliance with the requirements of the statute to fix alien was alleged.

The complaint did not allege that within ninety days after the materials were furnished, or at any time, an account-properly verified, &e., of the demand, &c., with a description of the property to be charged with the lien, was filed in the office of the clerk of the circuit court, &c., as it should have done. Gantt’s Dig., sec. 4060, 4067 ; Ark. Gent. JR,. It. Oo. v. McKay, 30 Ark., 6S2; Hicks et al. vBranton et al., 21 Ark., 186.

The statute expressly provides that when suit is brought to enforce the lien, “the petition, among other things, shall allege the facts necessary for securing a lien under the act, and a description of the property charged therewith.” Gantt’s Dig., sec. 4066-7.

i. ue- * Admits •complaint Mrs. Chaffin, by her default, did not admit that a lien had been fixed on the lots for the debt, for the necessary facts-constitute a lieu were not alleged in the complajnt. And . . the court erred in overruling the first assignment m the demurrer of George Chaffin.

No doubt the appellee intended to claim and enforce a lien in this suit, but his complaint ivas fatally defective for that purpose, and did not warrant so much of the judgment as is %n rem.

So much of the judgment as is in personam is affirmed, so much as is in rem is reversed, and the cause remanded with leave to appellee to amend his complaint if he shall elect further to prosecute the suit to enforce a lien upon the lots.