Boland v. Webster

JOHNSON, J. Action to enforce a mechanics’ lien brought by a subcontractor. A jury was waived, and the learned trial judge, after hearing the evidence, found the issues in favor of plaintiff and rendered judgment for the enforcement of the lien. Defendant Baldridge, the owner of the property appealed. He assigns a number of grounds for a reversal of the judgment, all of which, with one exception, are untenable. The facts constitutive of the cause of action are sufficiently alleged in the petition and the finding that the statement for the lien was filed in the time prescribed by the statute is supported by substantial evidence, but the cause must be remanded on the ground, properly preserved in the record, that plaintiff, in failing to offer in evidence the statement thus filed, omitted to prove a fact essential to his right to a lien. It appears that he did prove by competent evidence the date of the filing of the lien paper in the office of the circuit clerk, and that he offered in evidence the account appearing in that instrument, but for some reason not disclosed, did not offer any other portion of the instrument and, consequently, the record is barren of proof tending to show a substantial compliance with the provisions of section 4207, Revised Statutes 1899. It is there provided that the claimant shall “file with- the'clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known and the person filing the lien, which shall, in all cases be verified by the oath of himself or some credible person for him.” Compliance with these provisions is indispensable; without it, the lien is lost and in an action of this char [593] acter, the burden is on the-plaintiff to show such compliance. To do this, it is necessary to introduce the lien paper. As the record now stands, we have no means of knowing that the paper filed contained a true description of the property, or the name of the owner or contractor. If either of these facts were omitted, plaintiff has no lien. [Burrough v. White & O’Connor, 18 Mo. App. 229.] The demurrer to the evidence offered by the appealing defendant should have been given and it follows that the judgment must be reversed and the cause remanded. All concur.