Beck, J.
(After stating the foregoing facts.)
1. While the bill of exceptions, as appears from the statement of facts, recites that the oral demurrer was sustained, apparently no order was taken sustaining it, but the plaintiff was allowed to amend, as was set forth in the bill of exceptions. Construing these two recitals together, they must be taken to mean that the court, after announcing that the demurrer was sustained but before a judgment was taken to that effect, allowed the plaintiff to amend, and that the exception is really to an order which forced the plaintiff to amend. In that case the plaintiff in error has no valid ground of exception. If he believed his petition was good as it stood, he should have stood upon that petition without amendment, and have excepted to the order of the court sustaining the demurrer.
2. The exception to the court’s remark that/'the lien is admitted — not as a lien that the defendant owes the plaintiff anything,” upon the ground that it was calculated to prejudice the jury against the plaintiff, was without merit.
3. Under the rulings of the court complained of, the plaintiff, who was seeking to foreclose a mechanic’s and materialman’s lien, after filing a bill of particulars by way of amendment, proceeded with the suit as one upon an open account; but the jury found that the defendant was not indebted to the plaintiff in any sum for materials furnished or work done, and that verdict was authorized [556]*556by the evidence. We do not think, therefore, that even if under the pleadings as they stood the court should have held that the petition was one for the foreclosure of a lien, instead of holding that it was merely a suit upon an account, the jilaintiff was injured thereby; because, if the defendant was not indebted to the plaintiff in any sum for work done or for materials furnished, the plaintiff could not have obtained a verdict and judgment setting up a lien on the premises whereon it was alleged that the improvements were made.
Judgment affirmed.
All the Justices concur, except Fish, G. J absent. Free access — add to your briefcase to read the full text and ask questions with AI