Iowa Lumber Co. v. Best

78 N.W. 70, 107 Iowa 422

• Court: Supreme Court of Iowa
• Decided: January 30, 1899
• Status: Published

Opinion

Granger, J.

Some legal questions are discussed that we do not find it necessary to' consider. The notice of the filing of the statement for the lien was served January 21, 1895, and there is no dispute but that the lien should attach for any amount due from Dooley to Best at that time. The district court must have found the amount then due to be forty-six dollars and sixty-eight cents, the amount of the judgment entered. The accounting is complicated, and in some respects difficult, but we are well satisfied that the judgment is for too small an amount. Some of the items should never have been made a charge against Best, and the accounting is in other respects erroneous. After allowing in Dooley’s favor every item about which there is room for serious doubt, there is due Best over seven hundred dollars. It is not important to determine the precise amount. It is surely in excess of plaintiff’s claim.

It is thought by appellee that that action cannot be maintained, because plaintiff’s claim against Best is an open, unliquidated, unsettled account, so as to come within the rule of Vreeland v. Ellsworth, 71 Iowa, 347. The record does not support the claim. It is said that, while Best is named as a party in the pleadings, he was not served with notice. The abstract contains the’statement that on May 23, 1896, a default against George Best having been previously entered, judgment was entered in favor of plaintiff against George Best for the sum of five hundred and seventy-one dollars and twenty cents. The abstract is not questioned by a denial, and the record is conclusive of the fact. It is true that in the testimony of Best he sa}rs that he was not served with notice in this case. Such a statement will not overcome a statement in the abstract admitted because not denied. There should be a judgment for plaintiff for the amount of its claim, modified and affirmed.