Stubbs v. Clarinda, College Springs & Southwestern Railway Co.

17 N.W. 530, 62 Iowa 280

Opinion

Day, Ch. J.

There is one defect in the petition which is .fatal to it, and which obviates the necessity of considering the other objections urged. The petition does not state that anything is due the plaintiff from his immediate employers, Jesse Stubbs & Co. It is true, the statement for a lien, which is attached to the petition as an exhibit, alleges that there is due the plaintiff $547.37. But this statement for a lien was filed on the first day of April. This action was not commenced until the first day of September following. This statement in the claim for a lien cannot have the effect of an averment that there was something due when the action was commenced. "Without an averment that there was something due from Jesse Stubbs & Co. to the plaintiff, it is clear that the petition does not state facts entitling the plaintiff to any relief. See Roberts v. Campbell, 59 Iowa, 675. The demurrer to- the petition was properly sustained.

Affirmed.