Hicks v. Murray

[521]By the Court,

Wallace, C. J.: First—Upon a careful consideration of the Act of March 30th, 1868, securing a lien to mechanics and others, in connection with the facts of this case, we are of the opinion that the objections made in argument, as to the constitutionality of the Act, cannot be maintained.

Second—The objection that the claim of Browne is npt signed by him cannot be supported. His signature to the verification attached thereto is a sufficient signing of the claim within the intent of the Act.

Third—But we think that the amended answer and cross complaint of Browne is radically defective and insufficient to support the judgment he obtained. The statute (section five) requires that the claim for the benefit of the lien shall state, among other matters, the name of the owner or reputed owner of the premises, if known. The statement of the name of the owner or reputed owner is material—not less so than the statement of the amount of the demand after the deduction of just credits and offsets—the statute requires both and makes them equally indispensable. The pleading of Browne wholly omits to aver that his claim as filed contains the required statement upon the point of ownership. The averment, even had there been such, that the premises are those purchased by Murray of Mrs. Lewis, and are the same premises occupied by him, is not in substance an allegation upon the point of ownership or reputed ownership. But there is no such averment in the answer and cross complaint of Browne. The only allegation found there in this respect is an allegation that in his claim as filed he described the premises as those so purchased and occupied by Murray. Upon general demurrer this must have been held insufficient as a substantial allegation of ownership, or reputed ownership, of the premises at the time of the commencement of [522]the action. It is true that we can see that the statement itself is not defective in the particular of ownership—but this will not aid the pleading upon the point. By the tenth section of the Act the pleadings in such cases as this are required to be the same as in other cases. It has so often been determined that unless the facts essential to the support of the case be alleged upon the record, evidence upon such omitted facts cannot be heard or considered, that a citation of authority upon the point is unnecessary. Evidence of , facts, or stipulations as to the facts of a case, cannot make the case broader than it appears by allegation, nor can a party by mere force of facts admitted or proven become entitled to relief to which he would not have been entitled had his case been resisted only by general demurrer interposed to the pleadings upon which he relies.