35 Iowa 22 | Iowa | 1872
A petition may be assailed, by demurrer, for a defect of parties, but not for a misjoinder. Beckwith v. Dargets, 18 Iowa, 303, and cases cited in opinion of Wright, J. Section 2876 of the Revision of 1860 specifies “ defect of parties,” as a ground of demurrer, but omits misjoinder. While at common law a misjoinder, as well as non-joinder, of parties could be objected to by demurrer, it cannot
The statute (sec. 1846, Revision of 1860) provides: “ That every mechanic, builder, artisan, workman, laborer or other person, who shall do or perform any work or labor upon, or furnish any materials, machinery or fixtures for any building, erection or other improvement upon land, including contractors, sub-contractors, material furnishers, mechanics and laborers engaged in the construction of any railroad or other work of internal improvement, or for repairing the same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or sub-contractor, upon complying with the provisions of this act, shall have for his worlc or labor done, or materials, machinery or fixtures furnished, a lien upon such building, erection, or improvement, and upon the land belonging to such owner or proprietor on which the same is situated, to secure the payment of such work or labor done, or materials, machinery or fixtures furnished.”
It will be observed that the statute specifically includes laborers with the other classes of workmen and material furnishers named therein, as entitled to a lien for work and labor done. Each class named is placed upon exactly the same footing, in respect to this right to a lien, when they occupy the relations prescribed in the statute. The laborer, equally with the mechanic, must perform work, or labor under or by virtue of a contract; but the contract
Again, it is not essential that the contract under which labor is performed or material furnished should be made with the owner of the ground, or building or other improvement, or with his agent or trustee. The right to a lien, by the express language of the statute, extends to persons performing labor or furnishing materials, in pursuance of a contract with one who is a contractor or subcontractor, though he have no interest in the land or building or other improvement. In this case the plaintiffs performed labor in the construction of the railroad by
The cases cited by appellants’- counsel are inapplicable, because, so far as we have been able to examine, they were made under statutes essentially different from ours, which must clearly entitle the plaintiffs to liens for their labor, by complying with its provisions.
III., Appellants’ counsel make the point, in argument, that “ plaintiffs are not entitled to a lien, in that they did not give notice toi the'ttwner or proprietor, or his agent or trustee before or at the time they performed the work upon the road.”
This objection was not made a ground of demurrer, and we cannot, therefore, consider it.
The judgment of the district court is
Affirmed.