Baltis v. Friend ( 1901 )

ELLISON, J.

This action is to enforce a mechanic’s lien. The judgment in the trial court was for plaintiff for his account and for an enforcement of the lien.

Defendants’ first objection to the action of the trial court is that plaintiff was permitted to amend his petition after the close of the evidence. This amendment was made so that the petition would conform to the proof; it is allowable by statute (Section 2098, Revised Statutes 1899), and did not create a variance between the petition and proof. The defendant was evidently not misled or harmed. The objection was not well taken.

It is next contended that the court should have given a demurrer to the evidence on the account as to one of the defendants, and on the lien' as to both. We have not been furnished with a statement or argument by defendants, but as near as we can gather the point is that defendant, Jehu Friend made the contract and account with plaintiff and that Freeman Friend, his father, is the owner of the property and had no notice served on him of the intention to file the lien as is required by statute in eases where the contractor and owner are not the same. In this case it was alleged in the petition and the same theory submitted in plaintiff’s instruction, that defendant Jehu was the real owner of the property and that the deed was put in defendant Freeman’s name for the purpose of defrauding, hindering and delaying Jehu’s creditors. That • defendant Jehu was the owner and had a contract for a deed to the property from the prior owners when the contract was made but that the deed was made to his father for the fraudulent purpose aforesaid. We hold that such pretended and fraudulent owner, though the record title is in him, is-not entitled to the ten days’ notice required to be given to owners when the contract has been made by others. Sec. 4221, R. S., 1899.

Another objection made is based on thé fact that in making out the lien, a year date of 1898 is inserted instead of 1897. It was manifest that 1898 was not intended, and the court properly held it to be a clerical error.

We are not able to agree with defendants as to the other objections made. The instructions for plaintiff were manifestly correct.. The judgment was clearly for the right party and is affirmed.

All concur.