Murphey & Brockelman v. Heidenheimer

Opinion.— To fix and secure a mechanic’s lien it is incumbent upon the party asserting the lien to show a substantial compliance with the statute in every essential particular. Ferguson v. Ashbell, 53 Tex., 245. Not only must the bill of particulars be recorded, but a copy of the same must be served upon the party-owing the debt, and the burden is upon the party asserting the lien to show that this has been done. Lee v. O’Brien, 54 Tex., 367. By the allegations in the petition the debt sued on is claimed to have been contracted by appellee, and he is sued alone, while the evidence shows that the debt was contracted by Shisa & Orfila, and charged to them on the books of the appellants. Admitting that a debt contracted by a co-owner of property for improvements upon it. would constitute a lien upon the property, this would not render the co-owners individually liable for the debt in the absence of evidence showing authority to contract the debt. It is manifest from the record that the debt sued on was the individual indebtedness of Shisa & Orfila, and to fix and secure a lien upon the property the statute must be fully complied with, which the record fails to show, in this, that service was had upon appellee but not upon Shisa & Orfila. Under the facts of this case, considered in the most favorable light 724 for appellants, there was no lien fixed and secured upon the property. Considering the evidence disclosed by the record, the conclusion is irresistible that credit was not extended to appellee, but that the claim sued on was the individual indebtedness of Shisa & Orfila. However, had appellants proceeded according to the statute and served Shisa & Orfila with a copy of the bill of particulars, the lien would have been secured and property would have been bound. This, however, would not make appellee liable for the debt. As there was no lien to foreclose, and no individual debt against appellee, this suit as brought could not be maintained against him. Affirmed.