43 So. 571 | Ala. | 1907
The plaintiff testified as to the contract price for painting the house, and was corroborated as to this fact by a disinterested witness, who heard the defendant admit that the price testified to by plaintiff was the amount that he had agreed to pay for the work, and the court properly rendered a personal judgment for the plaintiff for the contract price, less the admitted credit. The burden was on the defendant to establish his pleas of set-off, payment, and recoupment, and the trial court properly held that he did not sufficiently do so.
In order to establish a lien on the house and one acre of land, or either, as given by the statute, the complaint and judgment must so describe the property as to identify it. In other words, the description should be such as to enable the officer to lcate it with some degree of certainty. Neither the complaint nor the verified statement that was filed so describes the one acre upon which a lien is sought with such certainty as would support a judgment declaring a lien thereon. The seven acres is described, but not the one acre. Indeed, the plaintiff’s counsel and the trial- court realized the imperfection in the description of the one acre, and the judgment was amended so as to eliminate the land therefrom. This was properly done, as the judgment was still in the breast of the court, and it cured any error committed by the trial court in declaring a lien on the land or in refusing to grant a new trial. The defendant cannot complain that the plaintiff saw fit to ask for a lien only on the house without the land. It has been held by this conrt in the case of Bedsole v. Peters, 79 Ala. 135, that
The complaint and statement filed both describe the house as being owned by the defendant and being “the house” situated on a certain definitely described seven acres of land. This description negatives the location of any other house on said land, and is therefore sufficient. Should there be another house on the land, then it is the plaintiff’s misfortune. It is sufficient for us to say that the description in the complaint is sufficiently certain to support a lien on the house.
While the description in the complaint and proof is sufficiently certain to support a lien on the house, the judgment before and after amendment is not certain. Judgments should be complete in themselves, and not dependent .upon other record recitals. It is true the judgment says the house described in the complaint, and then proceeds to describe the seven acres of land, which is essential to a description of the house, but omits, “Beginning at the S. E. corner of the S. E. 1-4 of the S. W. 1-4 of the section,” and says, “Beginning at the 8. E. 1-4 of the S. W. 1-4.” Beginning at what part of the S. E. 1-4 we are not advised. But, as the complaint and proof describe the seven acres and building as “the house” on said land, this court has the authority, under Acts 1901, p. 1862, § 14, to render such judgment as should have been rendered by the trial court^ and we here render one declaring a lien “upon the house of defendant situated upon the following described land: Begin at the southeast corner of the S. E. 1-4 of the S. W. 1-4 of section 30, township 18, range 4 west, and run north along the quarter section line three hundred and fifteen feet, to a point of beginning; thence north along said quarter section line 800 feet; thence east 66 1-2 degrees south, six hundred and sixty-five and three-tenths (665.3) feet, to the Jonesboro road, or what is known as the 19th St. road out of Bessemer; thence south along
The judgment of the city court is corrected and affirmed.
Corrected and affirmed.
