McAnally v. Hawkins Lumber Co. , 109 Ala. 397 ( 1895 )

HARALSON, J.

There was no error in sustaining a demurrer to the second plea. A claim of homestead exemption cannot be asserted against a mechanic’s or material, man’s lien, whether the lien be created by contract, or arise under statutory provisions, (Tyler v. Jewett,, 82 Ala. 93 ; Code §§ 2509, 3010, 3046) ; and a married woman, under the present statutes, regulating her liability (Code, §§ 2341-2356), may create a valid lien on her property, in favor of a mechanic or material man, by her own verbal contract, without the assent or concurrence of her husband. — Cutliff v. McAnally, 88 Ala. 507; Wadsworth v. Hodge, 88 Ala. 500.

There was error in striking out, on a general motion, the fourth plea, even if it was not sufficient. It was not frivolous on its face. Such a motion gives the plaintiff no sufficient notice of what the objections to the plea are, and no opportunity to meet them by amendment. Demurrer is the proper practice. — Lindsay v. Morris, 100 Ala. 550; Highland Avenue & Belt R. Co. v. Dusenberry, 94 Ala. 419; Powell v. Crawford, Mss. The plea, however, was a good one. It was interposed by the defendant, Catherine McAnally. It put in issue a fact upon which'the existence of the lien depended, in that it denied that the lumber was used in building, improving or repairing on the lot described in the complaint. Section 3034 of the Code provides, that “any defendant, by appropriate plea, may put in issue the fact of indebtedness, or the existence of the lien, or both, and may interpose any other defense applicable to the suit.” If, on trial, it be ascertained that the plaintiff has a lien as claimed, judgment shall be rendered for the amount secured thereby, interest and costs, against the party liable for the same, and also establishing the lien and condemning the property to sale for its satisfaction ; “but if the finding or verdict is for the plaintiff only on the issue of indebtedness, a judgment shall be rendered in his favor for the amount thereof, as in other cases.”

On the issue as to whether the materials furnished were used on the lot described in the complaint, we are indisposed to differ with the court on its finding. There was evidence on both sides, and we are not prepared to say that.the finding of the court was plainly erroneous. Woodrow v. Hawving, 105 Ala. 240; Nelson v. Larmer, 95 Ala. 300. This evidence was sufficient, therefore, on which to declare a lien on the lot, for the value of the materials so furnished, which was satisfactorily proved.

There was a plea of the coverture of Mrs. McAnally, interposed by her, — to which a mere general demurrer, assigning no specific grounds , was overruled, — and there was no proof of a written contract by her, executed under and according to the provisions of the Code, section 2346. Indeed, the suit, as for a personal judgment, is against her and her husband, on the common counts, for the value of the materials furnished, and this plea of coverture was a bar to a personal money judgment against her in such form of action, and such a judgment should not have been rendered against her.— Wadsworth v. Hodge, 88 Ala. 205; Cutliff v. McAnally, 88 Ala. 507.

The evidence shows a contract, if with any one, not with defendant P. McAnally, for the price of the materials furnished. No personal judgment could be rendered against him on the evidence, and the complaint being made against both defendants for a personal judgment, on a joint contract by them with plaintiffs, no defense which does not go to both defendants as to the contract for the payment of money can be maintained, unless it be of the class called personal. — Cobb v. Keith, 18 So. Rep. 325; Lee v. Wimberly, 102 Ala. 539; Gamble v. Kellum, 97 Ala. 677; Kirby v. Spiller, 83 Ala. 481.

And, again, this judgment for $81.50 could not have been rendered, without allowing the $15 attorney’s fee, the amount shown by the evidence to be reasonable,— but this fee it was not lawful in any event to allow.— Randolph v. Builders’ & Painters’ Supply Co., 106 Ala. 501.

Reversed and remanded.