Roman v. Thorn & Gorrie , 83 Ala. 443 ( 1887 )

SOMERVILLE, J.

The suit is one brought for the enforcement of a mechanic’s lien under the provisions of the statute. — Code, 1886, §§ 3018-3048.

It is fatally defective in making the agent of the owner or proprietor of the lands on which the improvements were made, the sole party defendant to the proceeding. While the lien created by the statute may arise on a contract made by the agent, or trustee of such owner or proprietor, the suit authorized by the statute is one against the principal, and not against the agent. The defendant, Eoman, as an individual, may have been a proper party defendant, as trustee of his wife’s statutory separate estate, under section 3030, which authorizes all persons interested in the matter in controversy, or in the property charged with the lien, to be made parties.—Trammell v. Hudmon, 78 Ala. 222. But it could not be maintained against him alone, so as to establish a lien on the property owned by the others who have not had their day in court.

The court erred in not sustaining the demurrer to the complaint, and in refusing to give the general affirmative charge requested by the defendant.

Reversed and remanded.

Clopton, J. not sitting.