Mornan v. Carroll, 35 Iowa 22

Mornan v. Carroll

35 Iowa 22 | Iowa | 1872

Miller, J.

i. demurrer : nonjoinder of^ parties. I. The objection made by the demurrer of Carroll is, that the plaintiffs join in the action, while interesfe3 are several and not joint. This n0^ a defect °f parties, but, if an objection at aft? ft ft a mftj0inder of parties, which consists in joining as plaintiffs persons who have not a joint interest in the subject of the action. A defect of parties occurs where there is an omission of some one of the persons who ought to have been made a plaintiff or defendant along with others. At common law this was called a nonjoinder. Where one who should have been joined, either as plaintiff or defendant, is omitted, a defect of parties occurs. But not so where persons are joined who ought not to be. This is a misjoinder.

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 *25under our system, which does not permit a demurrer for any cause that does not come under some of the specifications provided in section 2876 of the Revision. School Dist.-Tp. of Sioux City v. Pratt, 17 Iowa, 16 ; Byers v. Rodabaugh, id. 53, and cases cited.

2. Mechanics’ IiIEn: day laborer. II. The question presented by the joint demurrer of defendants is, whether, under the statutes relating to mechanics’ liens, a laborer on a railroad for ddnfs wages is entitled to a lien on the road therefor.

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 *26need not be in writing, nor is it necessary that it be proved by direct and positive testimony. Cotes & Davies v. Shorey, 8 Iowa, 416. In the case of materials furnished it is sufficient if it appears that it was' agreed by the parties that they were furnished for building purposes, although there was no contract that they were furnished for anj particular building. Id. Neither is it necessary that there should be a contract to perform any specific amount of labor any more than to furnish a specific amount of materials or machinery. In Jones v. Swam & Go., 21 Iowa, 181, it was held that to entitle a mechanic or builder to a lien it was not necessary that every item furnished should be contemplated and specifically named at the time of making the contract; but that if they were furnished under a contract it made no difference that the items were charged from time to time in the books of the builder or mechanic, and it was also held in that case not to be necessary that it should be expressly understood that the artisan was to have a lien for his work or materials. In this case plaintiffs performed labor upon the improvement upon which the lien is sought to be established under and by virtue of a contract to work thereon for day wages. Their contracts come within the meaning of the terms, “ Any contract ” embraced in the statute.

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 *27virtue of their contracts with the sub-contractor, and are clearly within the express terms of the statute.

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.