Jeure v. Perkins

29 Iowa 262

• Court: Supreme Court of Iowa
• Decided: June 15, 1870
• Status: Published

Opinion

Williams, J.

1. mechanics' tractor: notice, Plaintiff was a subcontractor of Perkins, who built a school-house for the other defendant. The notice of his intention to claim a lien upon the house, given to the proprietor, was verbal.

The defendant, the proprietor,' demurred to the petition, stating generally that the petition did not state facts sufficient to maintain a cause of action, and specifying that it does not show that the notice given by the subcontractor to the proprietor was in writing ; and, as another special cause of demurrer, that “the petition does not allege that there was money in the hands of proprietor when subcontractor settled with contractor.” The demurrer was sustained by the circuit court, for the reason last mentioned, and the general term sustained the demurrer for the reason first mentioned. If a demurrer is filed and sustained, and from the ruling on the demurrer an appeal is taken to this court, we sustain the demurrer if it is well taken, though the court below did not give a reason for its ruling in which we concur.

We do not concur in the reason given by the circuit court for its ruling, but we hold that the notice which the subcontractor must give to the proprietor, of his intention to claim a lien,'should be in writing. Section 1850 of the Revision provides that the notice above referred to may be served by a sheriff or constable, and that their return shall be evidence. This could not be done unless the notice was in writing, and we think the statute requires this by implication.

2. practice : supreme court, Where a demurrer, assigning several causes, is sustained as to one of such causes, and overruled as to the others, on appeal to this court the judgment on the demurrer will be affirmed, if it should have been sustained for any Of the causes assigned, although it may have been erroneous to . sustain it on the ground ruled by the court below.

Affirmed.