Tisdale v. Alabama Georgia Lumber Co. , 131 Ala. 456 ( 1901 )

DÓWDELL, J.

This was a suit by a material-man for the enforcement of the statutory lien against the property of the owner and proprietor for materials furnished the contractor for improvements on real estate. The complaint as amended was demurred to. The several grounds of demurrer attack the sufficiency of the averment in the complaint as to the notice ¿>iven the owner or proprietor by the material-man of his claim. The averment of the complaint in this regard is as follows: “The plaintiffs allege that on, to-wit, the 23rd day of September, 1898, they served a written notice on W. IT. Tisdale setting forth that they claimed a lien on said building and improvement, the amount thereof, for what and from whom it was owing.” This averment follows an allegation in the complaint stating the amount of the claim, and also that the same was due the plaintiffs from Fred Moesser, who was the contractor, with Tisdale the owner of the lot, and that the same was for materials furnished for the improvements' descrihed in the complaint. We think there can he no question but that this averment as to notice when taken in connection with the other averment in the complaint, was a sufficient compliance with the requirements of the statute as to what the complaint should contain as to the averment of notice served. The case of Cook v. Rome Brick Co., 98 Aa. 409, cited by appellants, is not in point, since there was no question of notice in that case. Nor was it necessary, under the statute, to aver in term® in the complaint that the material furnished was furnished under a contract with the contractor. It is enough that the facts averred showed such contract and that the materials were furnished for and used in the building.

The remaining assignments of error except the 15th relate to matters which can be presented for consideration and review only by proper bill of exceptions. It appears from the record that an order was made in term time on the 6th day of December, allowing sixty clays from said date for the signing of a hill of exceptions in the case. It also appears that the bill of exceptions contained in the transcript was signed by the presiding judge on the 2nd day of May folloAving, which was more than two months after the expiration of the time fixed by the order. It does not appear that any order of extension of the time granted was made by the judge in vacation, nor by agreement of parties in writing within the period and before the expiration of the time fixed by the order of the court on December 6th. It has been repeatedly held by this court that in such cases the bill of exceptions cannot be looked to or considered by this court. Section 616 of the Code provides: “No bill of exceptions can he signed after the adjournment of the court during which the exception wás taken, unless by consent- or agreement of counsel in writing, except in such cases as is otherwise provided.” Section 617 provides: “The court may, in term time, fix a time in which a hill of exceptions may be signed, and the judge may, in vacation, extend such time.” Section 618 is as follows: “The parties, or their counsel, may, by agreement in writing entered into in term time, fix a time in which a bill of exceptions may be signed, and may, in like manner, in vacation, extend such time.” 'Construing section 616 and 618 together, it is evident that the consent and agreement of. counsel in writing mentioned in the former section can only be available by the terms of the latter section (618) when entered into in term time, unless it be that such agreement in writing was for an extension of the time; then, in that event, it must be made within the-period fixed by the previous order. These provisions of the statute cannot be displaced or avoided by the consent of parties. The consent of the appellee for the signing of the bill of exceptions by the presiding judge, made on the 30th day of April, long after the expiration of the period fixed by the order of the court within which bill of exceptions was to be signed, does not help the case, since the only right and power of the presiding judge to sign the bill of exceptions is conferred and regulated by the statute. The language of section 616 is prohibitory — “No bill of exceptions can be signed,” etc., — and the right and authority to do so cannot be conferred by consent or agreement of parties unless such consent or agreement come within the requirements of the statute. Rule 30, p. 1200 of the Code of 1896 has been limited in its operation by the provisions of these statutes above construed.

The 15th assignment of error goes to the insufficiency of the verdict to support the judgment against the defendant Tisdale. The suit is brought under the statute against Moesser, plaintiff’s debtor, and to recover of Tisdale any unpaid balance due from him as proprietor and OAvner of the land to Moesser as contractor, at the time of notice given by the plaintiff to Tisdale of its, plaintiff’s, claim, and to enforce plaintiff’s lien under the statute for such unpaid balance against the property described in the complaint. Of course, there could be no judgment against Tisdale or lien declared on liis property, without first 'ascertaining that there was an unpaid balance in his hands at, or subsequent to, the time of plaintiffs’ notice, due from him to the defendant Moesser under his contract with said Moesser.

Under the pleadings the question of any unpaid balance in the hands of Tisdale as claimed in the complaint became an issue of fact to be determined by the jury. The verdict returned by the jury was as follows: “We the jury find for the plaintiffs and assess the damages at $395.58. We further find that the plaintiffs have a lien on the property described in the ■ complaint, and that W. H. Tisdale was due the contractor Moesser .........., and do hereby condemn the said property for the payment thereof.’’

The suit being by a niaterial-man, for materials furnished the contractor, on the issue of indebtedness, he may have a personal judgment against the contractor, upon proof of his debt, but as against the owner or proprietor, he 'Can have judgment only to the extent of any unpaid balance found to be due and owing from such owner or proprietor to the contractor, upon the ascertainment of his, plaintiff’s, lien. — Code, §§ 2723 and 2739. The verdict and judgment in favor of the plaintiff as against the contractor may be for one sum, and as against the owner and proprietor for a smaller and different sum. The above verdict after ascertaining the plaintiff’s damages to- be $395.58, proceeds to ascertain a lien on The property described in the complaint, and then proceeds to ascertain the amount due from Tisdale to the contractor Moesser, which is written in the verdict “..........” (no dollars), “and do hereby condemn the said property for the payment thereof ” That is, to the payment of the amount found to be due from Tisdale to Moesser the contractor, and which is the extent of the lien under the statute, and which the jury here by their verdict states to be “$..........” If the verdict of the jury after finding and assessing the amount of plaintiff’s damages,, had stopped with the finding of a lien on the property described in the complaint, there would be ground for saying that the intention of the jury was to find against Tisdale for the amount so assessed, and would have been sufficently definite to support a judgment against Tisdale. But that is not the case here. On the contrary, the verdict shows that the jury proceeded to ascertain the amount due from Tisdale to Moessei’, but failed to state their finding, whether by oversight, or for some reason, it is not shown. The.form of the verdict, with the omission of the amount found to be due from Tisdale to Moesser rendere it doubtful and indefinite, and, therefore, insufficient to support a judgment against Tisdale. It follows that the circuit court erred in rendering a judg: meat on this verdict against Tisdale, and the judgment will be reversed and the cause remanded.

McClellan, C. J., dissents on the ground that the verdict was sufficient to support the judgment rendered.