27 Mo. 264 | Mo. | 1858
delivered the opinion of the court.
The seventh section of the act concerning mechanics’ liens provides that whenever any person shall wish to proceed against any property, upon which he shall have a lien, he may commence his suit in the ordinary form, and shall have judgment against the original debtor for the amount that shall be found due him. (R. C. 1846, p. 735.) The practice act of 1849, art. 7, sec. 4, directs that when the items of an account exceed twenty in number, a party may file with his pleading a copy of the account and relieve himself from the burden of setting forth in his pleadings the items composing it. As a person examining the record would see that the account filed with the pleadings and the one filed with the claim for a lien corresponded, he would be sufficiently informed that the suit was for the purpose of enforcing the lien. In the case before us, the petition refers expressly to the account filed along with it. We see no necessity for the amended petition, as the petition showed that its object was to enforce a lien. We do not consider that any special prayer for execution against the property on which the lien had attached was necessary. It may be that another than the debtor is the owner or possessor of the property, in which case a scire facias would be necessary before an execution could be issued against the property. After the judgment is rendered for the debt due, then the court determines the course to be afterwards pursued. It will award execution, or refuse it in the event a scire facias is necessary.
No point was made in the court below in relation to the item for a coffin. Whether it was a thing for the making of which the law conferred a lien was a question not raised on the trial, and it can not now be raised for the first time in this court.
The same observation may be made respecting the signboards.
the judgment is affirmed.
