McConnell v. Worns , 102 Ala. 587 ( 1893 )

HARALSON, J.

1. There was no error in sustaining a demurrer to defendant’s plea in abatement. When the appeal was taken to the city court, the judgment before the justice was vacated, and ceased to have any force or effect, either as an estoppel, or as matter of evidence. The only defenses that court could regard were §pch as went to the merits of the case; to be tried de novo, as if it had originated in that court, in the first instance. — Code, § 3405; Lehman v. Hudmon, 79 Ala. 532; Littleton v. Clayton, 77 Ala. 571; Abraham v. Alford, 64 Ala. 281.

2. The statute provides, that “the complaint * * shall contain a description of the property on which the lien is claimed, and shall allege the facts necessary to entitle the plaintiff to the lien and the enforcement thereof.” — Code, § 3029. The demurrer to the complaint does not question its sufficiency, except in the respects, (1), that Stoner & Co. are necessary parties to the suit, and are not made parties; (2), that C. E. Bryan and M. T. Stoner are necessary parties and have not been served with process ; and because, (3), the plaintiff seeks a personal judgment against defendant McConnell.

The complaint does not show, and it is unnecessary for it to show, that any of the defendants had been served; and a complaint is never subject to demurrer for any thing not appearing in it. M. T. Stoner and C. E. Bryan, as appears from the complaint, were proceeded against as ‘ Tate partners in business under the firm name of Stoner & Co.,” and they are described in the summons in the same manner, which was served by executing it on C. E. Bx*yan. It can not be objected, then, that suit was not instituted agaixxst the late firm of Stoner & Co.

It is not clear from the complaint, that a moneyed judgment is not sought against appellant, McConnell, as well as against the other defendants; but one thing is certain, and that is, that no such judgxnent was rendered against him. The court did xio more, ixx the judgment that was rendered, as against the appellant, than to declare a lien on the lot of land upon which the complaint sought to have one declared and enforced, and to order its sale for the amount of the judgxnent rendered in the suit against the contractor. If there was any ex’ror in the frame of the complaint as to him in this respect, the appellant suffered no injury from it, andean not be heard to complain for the overruling of his demurrer to it.

3. On the trial of the cause, without any objection on the part of either of the other defendants, it was discontinued as to M. T. Stoner, who was not served, and it was prosecuted against the said C. E. Bryan, who appeared and consented to proceed with the trial; and judgment was rendered against him for $101.42, and a lien was declared and ordered enforced against the land described in the complaint. The appellant not having objected in the court below to the trial of the cause, without said Stoner as a party defendant, — if it was necessary for him to be one, — can not raise that question for the first time in this court.

4. Neither of pleas 2, 3 and 4 filed by the appellant, the owner of the building, shows a compliance by him with the requirements of the statute, in order to exempt his property from the declaration and enforcement of a lien thereon under said act, and were, therefore, subject to the demurrer interposed to them.

5. The case was tried by the court without a jury upon the denials of the allegations of the complaint.

By the contract with plaintiff, the contractors were to complete the house within 60 days from the 21 July, 1892. The plaintiff., on the 4th November, following,' notified appellant, in the manner required by statute, of his intention to claim a lien ; and on the 21st of November he filed his claim of lien under the statute in the office of the judge of probate of the county.

The evidence showed, without conflict, that the list as required by section 2-g- of said act was not demanded by the appellant, nor furnished by the contractors. They furnished pay-rolls of laborers once a week, and he settled by them. The plaintiff testified, that about the time he was completing his contract for labor and materials furnished, he made out his bill showing the balance unpaid, which was certified by the contractor as follows : “ Mr. McConnell: Please pay above when plumbing is finished, and oblige, Bryan & Sioner, 10, 1, 1892;” and presented the same, thus certified,to Mr. McConnell’s authorized agent in charge of the work, who informed him that he had $350 on hand, due the contractors, — more than enough to pay him ; and further, that he completed .his contract. This account was presented to J. W. McConnell, defendant’s agent, on the 1st of October, 1892. It was also shown by/plaintiff that said McConnell knew the plaintiff was doing the work, and had paid him, up to 1st. October $75thereon. J. W. McConnell, the agent of defendant, testified for him, that he did not remember telling plaintiff that he had money enough in his hands to pay his claim, but he may have told him so; that plaintiff did not complete his job until the 25th or 26th of October, 1892, and that he had already paid out more money than he owed the contractors under the contract.

6. We have the case, then, presented to us in this manner : The owner failed to comply with requirements of the mechanics' and material-men's act, to protect this property from the declaration and enforcement of a lien thereunder, the proofs show that he knew what he would owe the plaintiff, on the completion of his contract; he allowed him to go ahead and complete it, by furnishing labor and materials, and did not forbid him to do so ; that he told him he had money enough going to the principal contractor to pay him, and this, as is presumable, to induce plaintiff to complete the work, and now refuses to pay it, on the alleged ground, that he had already paid out more than he had contracted with the principal contractors to pay. Such a defense, can . not be entertained. He is estopped to deny he had money in hand of the contractor, sufficient in amount to pay plaintiffs. Myers v. Byars, 99 Ala. 484.

This disposes of all the matters assigned as error which have been insisted on in argument.

Affirmed.