Hagman v. Williams
Before: Belcher
Synopsis
Appeal—Transcript — Copy of New-trial Order — Second Bill of Exceptions — Clerk’s Certificate. —Where, after an order denying a new trial, a second bill of exceptions is filed, setting out the proceedings on the motion and the order made thereupon, a certificate of the clerk that the record contains correct and complete copies of the records and documents on file in the case, and, among others, of the last bill of exceptions, “including the order refusing anew trial,” is sufficient to meet the requirements of section 952 of the Code of Civil Procedure as to the copy of the order.
Pleading —Answer —Denials on Information and Belief—Presumptive Knowledge — Recorded Claim of Lien. — Where facts are alleged in a verified complaint which are presumptively within the personal knowledge of the defendant, he is not permitted to deny them upon information and belief, but must answer positively; hut this rule does not apply to the denial of the sufficiency of a recorded claim of lien.
Id.—Mechanic’s Lien — Foreclosure — Issue as to Claim of Lien — Variance between Complaint and Record. — In an action to foreclose a mechanic’s lien, where the complaint alleges that the claim of lien was duly recorded, and states its contents substantially in the language of the statute, hut the recorded claim of lien was in fact inartificialiy drawn, and not in the language of the complaint, a denial in the answer, upon information and belief, that the claim contains the necessary facts, is sufficient to raise an issue as to the alleged claim of lien.
Id.—Relevancy of Evidence to Pleadings—Unworkmanlike Character of Labor ■—Rebutting Evidence. — After the claimant of a mechanic’s lien has introduced evidence to show that the labor for which the lien was claimed was done in a good and workmanlike manner, evidence on the part of the defendant tending to disprove that fact, and to show that the work sued for was not done in a workmanlike manner, is admissible, notwithstanding an objection that there was no issue as to the unworkmanlike character of the work.
Mechanic’s Lien — Contents of Claim — Substantial Compliance with Statute. — A substantial compliance with the statute regarding the contents of a claim of mechanic’s lien is all that is necessary to its validity.
Bill of Exceptions-—Specifications of Error.—Specifications of the particular errors of law on which the appellant will rely are not necessary in a bill of exceptions.
Belcher, C. This is an action to foreclose a lien for work and materials used in painting a house erected for the defendant Ellen L. Williams.
The complaint states that the defendants are husband and wife; that Mrs. Williams owned a lot of land, and on a day named entered into a contract with certain builders to furnish all the materials and labor and erect for her a dwelling-house on the lot; that the contractors commenced the construction of the house, and after-wards made a contract with the plaintiff and one Anderson, under and by which they were to furnish the materials and perform the labor of painting the house, and were to be paid therefor the sum of $155; that upon the making of this contract Mrs. Williams promised and agreed with the painters that she herself would pay and guarantee payment of the sum of money to become due them under their contract, and would also pay them any and all further sums which might become due them for extra work on the house; that the painters entered upon the performance of their contract and fully performed and complied with all the conditions of the same, and at the request of Mrs. Williams furnished materials and did extra work of the value of $26; that the full amount due under the contract and for extra work, which Mrs. Williams promised and agreed to pay, was $181, of which sum $107 had been paid, leaving still due and unpaid the sum of $74; that the house was finished, and in due time the painters filed and had recorded a claim of lien, which was duly verified, and stated all the facts required by statute to be stated in such a case, and that subsequently Anderson duly assigned and transferred to the plaintiff all his claim and demand under the lien and against the said property .and defendants.
[148]The defendants, by their answer, denied that they, or either of them, promised or agreed to pay Anderson and Hagman for the work done under their contract, or to guarantee payment thereof, or to pay for any extra work, in any manner whatever; denied that Anderson and Hag-man, or either of them, fully performed all the conditions of their contract, or of any contract, mentioned in the complaint, or complied with the same; and, on information and belief, denied that the instrument filed and recorded by Anderson and Hagman, as a claim of lien, '“ contains a statement of their demand, or any demand, ■with the names of the person or persons by whom they ■were employed, or of any employment, or to whom they furnished materials, or of any materials, with a statement of the terms, time given, or conditions of their contract, -or of any contract. ”
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