Johnson v. Otto

75 N.W. 492, 105 Iowa 605

• Court: Supreme Court of Iowa
• Decided: May 20, 1898
• Status: Published

Opinion

Ladd, J.

— The plaintiff filed his petition March 13, 1896, alleging therein that he furnished lumber, hardware, and other material to- the defendant John Otto, to be used in the erection of a dwelling house on a part of a lot owned by him. A mechanic’s lien was filed May 11,1894. The defendant executed his note of two hundred and five dollars and fifty cents* for the balance due, February 10,1894. The last two' items: of the account attached to the mechanic’s lien, and on which the action is based, are dated February 10, 1894, and the item© last previous are dated December 9, 1893. John Otto acknowledged service of the original notice March 10, 1896, and the same was placed in the hands of the sheriff of Scott county for service, and served on the Sieg Iron Company March 11,1896. No notice was given Julia A. Otto, but she appeared voluntarily, and filed an answer, April 8, 1896. The answer of the Sieg Iron Company, and those of John and Julia A. Otto •allege that no material was furnished by plaintiff under his contract after December 9, 1893. The court entered a decree in favor of plaintiff, a© prayed, but found the items of February 10, 1894, were not furnished. The evidence is not before us.

The appellants rely upon an assignment of error to the effect that the court erred in entering a decree for the plaintiff, when, according to it© findings, more than two- year® and ninety days had elapsed between the furnishing of the last item and the beginning of the action. If the last items were furnished not later than December 9, 1893, then two' year© and ninety-one days had elapsed before the action was begun, and it was barred by the statute of limitations. Squire v. Parks, 56 Iowa, 407; Dimmick v. Hinkley, 57 Iowa, 757. While section 3092 of the Code requires the statement of account attached to the affidavit for a mechanic’s lien to set forth the time when the material was furnished or the labor performed, mere inaccuracy in fixing the time will not defeat the lien Bangs v. Berg, 82 Iowa, 350. If the items of December 9th were in fact furnished a few days later, then the right to maintain the action was not barred by the statute. Every fair presumption must be indulged in favor of the correctness of the decree, and, in order to uphold it, we infer that the evidence warranted the conclusion, of the court that some of the material was furnished some days after December 9th, though the time was fixed as of that date, or earlier, in the statement of account and petition. See Ward’s Heirs v. Cochran, 36 Iowa, 432. — Affirmed.