Heltzell v. Langford

Dryden, Judge, delivered the opinion of the court. This action was brought under the lien law specially applicable to St. Louis county. (Sess. Acts, 1856-7, pp. 668-9.) The act provides that in all suits under it “the petition, among other things, shall allege the facts necessary for securing the lien.” One of the requisite facts is that the creditor shall, within a time limited, file an account of his demand in the proper office. The time of filing is a material, issuable fact, which must be alleged and without which the petition will not show a cause of action. It is not enough to aver the filing of the demand without an averment of the time when ; for a filing at the wrong time is as inefficacious as if not filed at all. The petition should therefore show the time when the account was filed, so that the court may see and pronounce the judgment of the law that a cause of action exists, and that the defendant may have an opportunity of taking issue upon the fact material to the plaintiff’s right. In this case there is a total omission to show in the petition when the account was filed, as well as the time when the indebtedness accrued; and for this cause the petition is fatally defective, and the motion in arrest ought to have been sustained. As the case will have to go back and the plaintiff amend his petition, we would suggest in view of what was disclosed by the evidence on the trial, whether Coleman, the witness, is not the real debtor of the plaintiff, and therefore a necessary party defendant. There were other questions raised in the case, but which it is not necessary should be decided now. With the concurrence of the other judges, the judgment is reversed and the cause remanded, with leave to the plaintiff to amend his petition.