220 Miss. 372 | Miss. | 1954
Appellant, Jay Industries, Inc., seeking a mechanic’s and materialmen’s lien, filed this suit in the Circuit Court of Holmes County against appellees O. M. Powell and Mrs. V. L. Willis. Appellant is a corporation doing business under the firm name of Koolvent Metal Awnings. The petition for lien charged that defendant Powell ordered from plaintiff a metal awning for a filling station operated by Powell, in the City of Durant, and belonging to and in the possession of Powell, Mrs. Willis, and Pan-American Oil Corporation, hereinafter referred to .as Pan-American, and that Willis and Pan-American are named because they own some interest in the property. The petition averred that the awning was made of aluminum, being 24 by 18 feet, that a balance was due on its purchase price of $675.40; and that the installation of the awning was necessary for the preservation and prevention of depreciation of the property of Powell and the other two defendants. It was charged that plaintiff was entitled to a purchase money lien upon the metal awning itself, under Code Sec. 337, and was also entitled to a mechanic’s and materialmen’s lien upon the awning, installed on September 19,1950, building, and real estate, and also an in personam judgment against Powell. Per
On April 5, 1952, Mrs. Willis filed an answer, in which she admitted that she was the owner of the property upon which the awning was constructed. She averred that she had not authorized the construction, and that at that time Pan-American was the lessee of the property; and she denied that plaintiff was entitled to any lien. On April 8 plaintiff moved for and obtained a non-suit as to Pan-American. On April 9 Mrs. Willis filed a motion to dismiss the suit as to her. This motion was based upon two propositions: (1) She did not know of or consent to the erection of the awning, which is affixed to the land, its removal would damage the real estate by destroying the concrete island, and it would cost more than $500 to repair the realty damaged by its removal. (2) When the awning was erected, and at the time of the suit, Pan-American was the owner of the leasehold estate in the property from Mrs. Willis, and Pan-American is a necessary and indispensable party to the suit. Under Code Sec. 360, the suit to assert a lien must be filed within twelve months after the time when the money becomes due and payable; and since more than twelve months have now elapsed and plaintiff cannot now sue Pan-American, even though it is a necessary party, plaintiff cannot pursue this suit against movant in the absence of such necessary party.
Several witnesses were heard on this motion. Mrs. Willis owns the property subject to the Pan-American lease. She did not give permission to erect the awning, and did not know of it until she had returned from a five-month’s visit to Tennessee. Powell was operating
For the plaintiff on the motion, D. W. Jalanivich, secretary of appellant, testified that appellant constructed this canopy under a contract with Powell. He and two helpers erected it in a day and a half. They bored four holes in the concrete eight to ten inches in diameter and excavated the dirt below it from twenty-six to thirty-six inches. The metal posts, four inches in diameter, were then set into these holes, and cement was poured around them. They then assembled the framework of the awning, and screwed and bolted it onto the four metal pipes so erected. In order to remove the canopy from the posts, it would take about an hour’s labor to unbolt and unscrew the joints. In order to remove the metal posts, he would chop down three inches below the top of the concrete and fill the
At the end of this testimony, the motion to dismiss as to Mrs. Willis was sustained. The order dismissed plaintiff’s petition as to her insofar as it concerned any mechanic’s and materialmen’s lien against “the real property or fixtures in question”, but did not dismiss it as to Powell “as regards a judgment against the said Powell in personam.” Thereafter, the plaintiff (on the merits against Powell) again introduced Jalanivicli, who testified concerning the balance due by Powell. The court gave appellant a peremptory instruction against Powell for $695.66, and a final judgment so adjudicated Powell’s personal debt to appellant.
Appellant argues that the trial court erred in rendering against Powell only an in personam judgment, without any lien against the awning; that it erred in holding that Pan-American was a necessary party, since the proof showed that it had assigned its lease to Johnson and Wiggley Oil Company, who had subleased to Powell; and that the canopy was a fixture which could be removed from the land without substantial injury to it, so the court erred in denying a lien against the canopy.
Code Sec. 361 provides that “All persons having an interest in the controversy, and all persons claiming liens on the same property . . . shall be made parties to the suit.” The record reflects a lease of the
However, the trial court was correct in part in sustaining Mrs. Willis’ motion to dismiss the petition, to the extent that appellant was seeking to enforce a lien upon the real property, the land and the building. Mrs. Willis did not consent either expressly or impliedly to the erection of the awning at the service station, so appellant cannot enforce the lien on the building or the land under Code Sees. 356-358.
Appellant’s petition for lien sought to enforce a lien against not only the real estate but also against the awning itself. Code Sec. 358 provides that if a fixture is erected at the instance of a tenant not the owner of the land, only the fixture and the estate of the tenant
Affirmed in part and in part reversed and remanded.