71 W. Va. 173 | W. Va. | 1912
In these three consolidated causes, having for their purpose the enforcement of mechanics liens for materials furnished and labor performed at the instances of a principal contractor, the decree must be reversed for failure to make the principal contractor a party. Augir v. Warder, 68 W. Va. 752.
Each of the three bills discloses on its face the relation of the parties and the omission stated. Farley was the owner of the property on which the house in which the materials were used and upon which labor was bestowed was built, and Caldwell had the contract for building it. General demurrers to the bills, assigning no grounds other than insufficiency thereof in law or equity, were overruled,-as shown by the decree, referring to the answers, containing the demurrers, and reciting failure to assign any ground or cause beyond that stated in them. Section 29 of chapter 125 of the Code does not bar reversal of a decree founded upon an insufficient bill, for failure to allege anything in support of the demurrer. The clause thereof relied upon here does not apply to equity pleadings at all. Hays v. Heatherly, 36 W. Va. 613. Anything in Cook v. Dorsey, 38 W. Va. 196, seemingly in conflict with this view is an obiter dictum and not matter of actual decision. If that clause were applicable, however, it would not preclude reversal, for the order fails to say no ground of demurrer was assigned.
As, in the absence of necessary parties, nothing can be de
Reversed and Remanded.