
    Stubbs v. The Clarinda, College Springs & Southwestern Railway Company.
    1. Mechanic's Lien: petition eor foreclosure oe: pleading. A petition for the foreclosure of a mechanic’s lien is fatally defective, which fails to state that something was due for the services on which the lien was founded at the time the action was begun. A statement for a lien, which is attached to the petition as an exhibit, but which was made out and filed some months before the begining of the action, and in which it is alleged that something was due when the statement was made, cannot supply the place of an averment that something was due when the action was begun.
    
      Appeal from Page District Court
    
    Saturday, December 8.
    The plaintiff files a petition in substance alleging that, on the first day of September, 1881, be made a verbal contract with the firm of <Tesse Stubbs & Co., wbo were sub-contractors under John Eitzgerald, wbo was the principal contractor with the defendant in building its line of railway, to render personal services to them in the prosecution of the work of building said company’s line, as their book-keeper, cashier and general superintendent of the working force employed by said Jesse Stubbs & Co. on said railroad, and that, in pursuance of said contract, be rendered such personal services for the period of seven months, ending March 21,1882, for which he was to recieve $100 per month and his personal expenses. That plaintiff filed in the clerk’s office of the district court of Page county a just and true account of his claim, duly verified, on the first day of April, 1882, claiming a mechanic’s lien on said railway. That within thirty days after said work was done and said claim was filed, defendant was duly notified thereof in writing, and was commanded to make no payments to any contractor prejudicial to the rights of plaintiff. Plaintiff demands judgment for $547.33, and that his lien be established and enforced against defendant’s line of railway. The defendant filed a general demurrer to tbe petition, wbicb the court sustained. The plaintiff appeals.
    
      MePherrin Bros., for appellant.
    
      W. W. Morsman and Hepburn & Thummel, for appellee.
   Day, Ch. J.

There is one defect in the petition which is .fatal to it, and which obviates the necessity of considering the other objections urged. The petition does not state that anything is due the plaintiff from his immediate employers, Jesse Stubbs & Co. It is true, the statement for a lien, which is attached to the petition as an exhibit, alleges that there is due the plaintiff $547.37. But this statement for a lien was filed on the first day of April. This action was not commenced until the first day of September following. This statement in the claim for a lien cannot have the effect of an averment that there was something due when the action was commenced. "Without an averment that there was something due from Jesse Stubbs & Co. to the plaintiff, it is clear that the petition does not state facts entitling the plaintiff to any relief. See Roberts v. Campbell, 59 Iowa, 675. The demurrer to- the petition was properly sustained.

Affirmed.  