Gulf, F. & A. Ry. Co. v. Sharpe

SOMERVILLE, J. [1] The bill seeks to enforce a mechanic’s lien on the unpaid bal *531 anee due on the work from the owner to the contractor in chief. Although it prays for a writ of execution to enforce the payment of his claim, it does not seek to enforce a lien upon the roadway of the railroad company, and hence the first ground of objection to the bill is inapt. We therefore need not determine whether the demurrant’s proposition of law in that regard is sound or not. See, however, Buncombe County v. Tommey, 115 U. S. 122, 5 Sup. Ct. 626, 1186, 29 L. Ed. 305, and Powder Co. v. G. & J. Ry. Co., 183 N. Y. 306, 76 N. E. 153, 2 L. R. A. (N. S.) 288, 111 Am. St. Rep. 751, 5 Ann. Cas. 443. [2] We think it perfectly clear that Glad-well, the subcontractor by whom complainant was employed, is a necessary party to this suit. Whatever part of the unpaid balancé may be due to him will be reduced by whatever amount may be here recovered by complainant. Gladwell is therefore directly interested in the fund in question, and will be affected by the decree herein sought, and is entitled as an adversary party to contest both the fact and the amount of complainant’s claim; and though respondents could bring him in by way of cross-bill, the duty to make him a party rests primarily upon complainant. Prout v. Hoge, 57 Ala. 28; Harwell v. Lehman, 72 Ala. 344. [3] Construing the bill more strongly against the pleader, it must be taken as showing that complainant was a mere journeyman or day laborer. So intended, it should appear that the verified statement of complainant was filed, as required bylaw (Code, § 4758), within 30 days after the accrual of the indebtedness claimed. Cook v. Rome Brick Co., 98 Ala. 409, 413, 12 South. 918; Welch v. Porter, 63 Ala. 225. Otherwise, complainant fails to show an enforceable lien, which he must always show whether the suit be one in law or equity. For the defects noted above the demurrer to the bill of complaint should have been sustained. The decree of the trial court will be reversed, and a decree here rendered sustaining the demurrer to the bill of complaint. Reversed and rendered. ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur.