Seibs v. Engelhardt

78 Ala. 508

• Court: Supreme Court of Alabama
• Decided: December 15, 1885
• Status: Published

Opinion

STONE, C. J.

Section 3457 of the Code of 1876 provides, that “ every person, except the original contractor, who may wish to avail himself of the benefits of the provisions of this chapter [Liens of Mechanics] shall give ten days notice before filing of the lien, as herein required, to the owner or his agent, or to either of them, that he holds a claim against such building or improvement, setting forth the amount, and from whom it is due, and for what.” There can be no question that this notice must be in writing. The words “setting forth the amount,” &c., clearly imply-that. The meaning of the word “ setting ” is, a placing, or putting in a place, condition, state or posture. “ Forth,” in the connection here used, means out to view. “ Setting forth ” means placing, or putting in a place to be seen or viewed. The words, eye vi terminorum,, imply a writing.

The written notice given in this case was on the 8th of August. The claim was filed for record on the next day, the 9th. The present suit was brought August 16, and seeks to enforce a lien for materials and labor furnished under a contract, not with the proprietor, but with the chief contractor. The case is not brought within the statute, and the attempt to fasten a lien -must fail. — Phillips on Mech. Liens, § 338; Thomas v. Barber, 10 Md. 380 ; Shubert v. Crowley, 33 Mo. 564; Heltzell v. Hynes, 35 Lb. 482; Murray v. Rapley, 30 Ark. 568:

The statute (Code, § 3454) provides, that “ no lien shall continue to exist by virtue of this, chapter, for more than ninety days after the lien shall be filed, unless within that, time an action shall be instituted thereon, as hereinbefore prescribed.” The present action was commenced August 16, 1884, but it was commenced against J. Gr. Seibs, the husband, as the alleged owner of the land. The claim had been made out and filed in the probate ofiice as against Mr. Seibs, and no reference .was made either in the claim, or in the complaint, to any ownership Mrs. Seibs might have in the property. In June, 1885, the complaint was amended, by inserting the name of Mrs. A. E. H. Seibs, wife of J. Gr. Seibs, as a party defendant, and averring that the property was hers, and that the liability and lien rested on her. To this amended complaint Mrs. Seibs pleaded the statute of limitations of ninety days, as a bar to the action, so far as it proceeded against her property. No demurrer was interposed to this plea, and we must treat it as if issue of fact was joined upon it. This, however, was immaterial; for, if it had been demurred to, the demurrer should have been overruled. The amendment introduced a new party, and as to her it was-the commencement of the action. The statute of limitations was a complete bar, so far.as she was concerned. — King v. Avery, 37 Ala. 169; Mohr v. Lemle, 69 Ala. 180; Young v. Stoutz, 74 Ala. 574; Adams v. Phillips, 75 Ala. 461; Phillips on Mech. Liens, § 431 ; Dunphy v. Riddle, 84 Ill. 22; Crowl v. Nagle, Ib. 437; Miller v. McIntyre, 6 Pet. 61. Many rulings, of the court in the trial below are. opposed to these views. ¥e need not particularize the several rulings which fall under this principle.

Many other decisions of the court were excepted to, but we need not consider them.

Reversed and remanded.