75 Mo. App. 516 | Mo. Ct. App. | 1898
This is an appeal from an order granting a new trial. The action is by a sub-contractor against the original contractor and landowner to enforce a mechanics’ lein for lumber used in the construction of a building. At the trial the court excluded the lien paper but subsequently granted a new trial on the ground that such exclusion was improper. Thompson, the landowner, appealed to this court, and the sole question is whether or not the lien account complied with the law. If so, then the judgment or order granting a new trial should be affirmed.
On the face of the lien account a large part of the items have no dates indicating when they were furnished, though the affidavit attached to and accompanying the account, states, “that said demand accrued within four months prior to the filing of this lien.” Following a late decision of the supreme court. Mill Co. v. Allison, 138 Mo. 50; we must hold the lien account sufficient. As we understand it, the supreme court now holds, that, though there are no dates affixed to the account proper, yet when the affidavit attached by the lienor declares that said account accrued within the time required by statute (in this case four months before the lien was filed) then the same is sufficient. Former decisions of this court, in respect to that matter, have been thus overruled, and that of the St. Louis court of appeals in Hayden v. Wulfing, 19 Mo. App. 353, adopted as the law.
Judgment affirmed.