Shealey v. Livingston ( 1911 )

Russejx, J.

1. The court did not err in overruling the exceptions to the answer of the justice of the peace. The answer was amply responsive to the petition, and although certain paragraphs of the petition were answered only by the word “true,” this was sufficient to import full verification of the statements in the paragraphs to which the word “true” referred.

2. The defendant in the lower court, having replevied the lumber upon which the plaintiff claimed' a lien as laborer, and upon which the labor was performed, as his own property and not that of the J. R. Sliealey Lumber Company, was thereafter estopped from asserting that the labor was performed not for himself but for the company.

Decided January 31, 1911.

Certiorari; from Worth superior court — Judge Park. April 25, 1910.

Claude. Payton, C. E. Hay, for plaintiff in error. J. H. Tipton, contra.

3. The counter-affidavit- denying that the plaintiff lienor had demanded payment, the burden of proving that a demand for payment was made prior to the foreclosure of his laborer’s lien was upon the plaintiff. There was no evidence that any demand for payment was made by the plaintiff, as stated in his affidavit of foreclosure, or that payment was refused prior to the foreclosure of the laborer’s lien; and the judgment overruling the certiorari is reversed upon this ground alone.

Judgment reversed.