57 Ark. 284 | Ark. | 1893
It is insisted for the defendant that the filing of the complaint in this case was not a filing of plaintiffs’ claim, within the rule announced in Anderson v. Seamans, 49 Ark. 475, and that plaintiffs never took the steps requisite to fix their lien, under the law regulating mechanic’s liens. The grounds relied upon to distinguish this case from that are, ‘that the plaintiffs did not file with their complaint an itemized account of their demand, or an affidavit to the effect that their claim was a just and true one, after allowing all credits.
The statute (Mansf. Dig. sec. 4406) does not require the filing of an itemized account; and, in accordance with ruling's of other courts upon similar statutes, we hold that it was not necessary. Murray v. Rapley, 30 Ark. 568; Buckley v. Taylor, 51 Ark. 302; 2 Jones on Liens, sec. 1406; Phillips on Mechanics’ Liens, sec. 353; 15 A. & E. Enc. Law, 139; Ricker v. Joy, 72 Me. 106.
As the allegations of the complaint embrace substantially everything that the statute requires to appear in the verified claim, and as it was supported by an affidavit of one of the plaintiffs that such allegations were true, we are of opinion that the last distinction cannot be maintained, and that this case comes within the rule of Anderson v. Seamans, 49 Ark. supra.
It is insisted, however, that the plaintiffs, by demurring to the answer and admitting its allegations to be true, admitted that they had not taken the steps necessary to fix a lien. The answer.did not deny the fact of the filing of the complaint in the case, which was a fact apparent of record ; it was designed to question the sufficiency of such fact to fix a lien, and to allege affirmatively that no claim had been filed except as the record in the case disclosed. While there is language in the answer susceptible of a broader meaning, no other meaning can be given it, viewed as a whole; but if it was designed to mean more, and the allegation was that the filing of the complaint was not sufficient to charge a lien, it would be only a conclusion of law as to facts disclosed by the record, and would not be admitted by a demurrer.
Affirm.