Rust-Owen Lumber Co. v. Fitch

Citations

• 3 S.D. 213
• 52 N.W. 879
• 1892 S.D. LEXIS 60

Syllabus

<p>1 In an action to enforce a contractor’s lien under the mechanic's lien law of this state, an averment in the complaint as against persons made defendants, other than .the owner of the premises sought to he charged with the lien, that they have, or claim to have, some interest in or lien upon the premises, which lien or interest, if any, accrued subsequently to the lien of the plaintiff, is sufficient, and, if such defendants have any interest in or lien upon the premises, they must set it out if they desire to defend the action.</p> <p>2. An allegation in tlie complaint that the plaintiff began to furnish the lumber on the 2d day of November, 1889, and that all of said lumber and materials were furnished between that day and the 29th day of May, 1890, — at about which time the building was completed, — does ■ by a fair construction allege that the last of said material was furnished on said May 29th.</p> <p>3 An allegation in the complaint that the verified account required by the statute to be filed with the clerk of the court was so filed on June 23, 1890, taken in connection with the allegation that the last of said lumber and materials was furnished on May 29th sufficiently shows that the verified account was filed within the 90 days prescribed by the statute.</p> <p>4. The omission to allege in the complaint the time when the building was commenced is cured by the allegation that the lien of the defendants accrued subsequently to the lien of the plaintiff. This allegation, if denied, presents an issue under which all evidence as to the time when the building was commenced, would be admissible.</p> <p>5. Objections made to the exhibit annexed to the complaint cannot be considered on a demurrer to the complaint. KELLAM, P. J., dissenting.</p> <p>(Syllabus by the Court.</p>