Pfeiffer Stone Co. v. Brogdon

Smith, J. Appellants brought this action to enforce a lien under Sections'4 and 5 of Act No. 446 of the Acts of 1911, page 462, for material furnished to the contractors and used by them in the building of a church. The ten days’ notice required under Section 4976 of Kirby’s Digest was not given, but before the expiration of the ninety days allowed by law for the enforcement of liens of this character appellants brou’ght this suit on this account for the material furnished. It was alleged that the bond provided for by the Act of 1911 above referred to had not then been given. The complaint alleged that the last item of material was furnished on September 11, 1913, and placed in position in the building under the contract on September 12, 1913. The original complaint was filed and summons issued December 9, 1913.

Appellees, who were the contractors engaged to build the church and the trustees of the church, filed a demurrer to the complaint in which the following grounds of demurrer were set up:

“First. Said complaint is insufficient to support a hen against said building because it fails to show that plaintiff filed a just and true account of its alleged demand due and owing it, within the time required by law, verified by affidavit, as required by Section 4981, of Kirby’s Digest.

“Second. Said amended complaint is 'insufficient to entitle plaintiff to a lien against said church for the reason that same does not show that plaintiff gave notice that it held a lien against said church, as required by Section 4976 of Kirby’s Digest.

“Third. Said amended complaint does not state facts sufficient to entitle plaintiff to a lien against the church of which these defendants are trustees.”

The judgment of the court below recites that the demurrer was sustained “for the reason that notice was-not given by plaintiffs for ten days as required by law before attempting to enforce the lien herein,” and appellees argue that the demurrer should have been sustained upon the first and third grounds' as well as upon this second ground.

It is not contended by appellants that it complied with Sections 4976 and 4981 of Kirby’s Digest by giving the ten days’ notice and filing copy of the account with the clerk of the circuit court. It is urged that the necessity for so doing was obviated by the institution of the suit to enforce the lien within ninety days after the last materials were furnished. Appellants are correct in this contention, as we expressly decided in the case of Simpson v. Black Lumber Co., 114 Ark. 464 .

It is pointed out that the amended complaint was filed on June 12, 1915, and that the demurrer was sustained to this complaint. It is not contended, however, that the original complaint was insufficient to furnish notice of the claim of the hen if that notice can be given by the mere institution of the suit, and as we have held and now hold that the institution of suit does cure the omission to comply with the requirements of Sections 4976 and 4981 of Kirby’s Digest it follows that the demurrer was improperly sustained, and the judgment of the court to that effect must be reversed and the cause will be remanded with directions to overrule the demurrer.