Opinion
7 Div. 681.
February 19, 1942.
Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.
D. G. Ewing, of Birmingham, for appellants.
One not alleged to have an interest in the property and against whom no judgment is prayed is not a proper party. Sorsby v. Woodlawn Lumber Co., 202 Ala. 566, 81 So. 68; Davidson v. Rice, 207 Ala. 285, 92 So. 474. Bill must allege clearly all facts necessary to entitle complainant to materialman's lien. Code 1940, Tit. 33, § 40; Bennett Realty Co. v. Isbell, 219 Ala. 318, 122 So. 337. In order to join in one claim of lien and enforce in one suit where several lots are involved and several buildings, it is necessary to show that material was furnished under one contract. Code 1940, Tit. 33, § 45; Bennett Realty Co. v. Isbell, supra. The property upon which lien is claimed must be described with certainty. Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266. The statement of claim or lien filed must allege the owner or proprietor of the property. Failure in this respect renders it impossible for complainant ever to establish a lien. Code 1923, § 8836; Sanitary Plumbing Co. v. Simpson, 200 Ala. 590, 76 So. 948; Fulton v. Watts, 209 Ala. 408, 96 So. 184. The decree should, therefore, be reversed and a decree entered sustaining the demurrer and rendering the cause. King v. Woodlawn Lumber Co., 201 Ala. 539, 78 So. 893.
C. W. Stringer, of Talladega, for appellee.
In copying the statement of lien made an exhibit to the bill, an error was made in omitting the part showing the name of the owner or proprietor of the property in said statement. As for this the bill may be demurrable. The cause may, therefore, be reversed and remanded in order that the bill may be amended and the cause then proceed to judgment on the merits.
The bill was filed to enforce a materialman's lien against real estate which had been subdivided into lots. The demurrer was overruled.
The statute as now codified is to be found in Code 1940, T. 33, § 37 et seq.
In Grimsley v. First Ave. Coal Lumber Co., 217 Ala. 159, 115 So. 90, 91, it was declared:
"The bill and its exhibit, with the usual leave of reference, constitute the pleading of complainant, and demurrer directed thereto will be so referred and tested. The exhibit attached to the bill when treated as a part thereof on demurrer in proper circumstances aids and supplements the bill. * * * The pleading when so considered together shows the complainant had a contract with, and that the materials were furnished to and debt incurred by contract with, the owner or proprietor of the property improved therewith.
* * * * *
"In this jurisdiction it is declared that the mechanic's lien attaches and has priority over mortgages and other encumbrances given or recorded and attaching after the building or improvement was commenced. * * * And it is established that as against mortgages and trust deeds a mechanic's lien takes precedence according to the time when it attached to the property in its improvement. * * * And that when the property is subject to a mortgage or other incumbrance at the time of the accrual of a mechanic's lien, such incumbrance retains its priority. * * *"
See the cases of Walker v. Scott Lumber Co., 222 Ala. 604, 133 So. 695; Sturdavant v. First Ave. Coal Lumber Co., 219 Ala. 303, 304, 122 So. 178.
The property on which the lien is claimed is described with certainty. Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266. In order to enforce lien in one suit on several lots, it is necessary to aver and show that the material was furnished and went therein under one contract. Code 1940, T. 33, § 45.
In Bennett Realty Co. v. Isbell, 219 Ala. 318, 319, 122 So. 337, multifariousness is considered on the authorities cited.
It is conceded by appellee that the decree must be reversed for required amendments pursuant to the statute. Bennett Realty Co. v. Isbell, supra; Grimsley v. First Ave. Coal Lumber Co., supra.
It is insisted by appellant that this court should not only reverse the decree of the trial court, but should cause a decree to enter sustaining demurrer and rendering said cause, putting an end to further litigation and the unnecessary expense thereof.
We are of the opinion and hold that the decree of the circuit court should be and it is hereby reversed and the cause remanded in order to permit the necessary amendments to the bill.
Reversed and remanded.
GARDNER, C. J., and BROWN and FOSTER, JJ., concur.