
    4938.
    Richardson v. Mallory.
    Decided September 23, 1913.
    Lieu foreclosure; from city court of Madison — Judge Anderson. May 12, 1913.
    
      F. 0. Foster, for plaintiff in error.
    
      Williford & Lambert, contra.
   Russell, J.

1. The lien of a sawmill man, provided for in section 3356 o> the Civil Code, must be • asserted in the manner prescribed in section 3354. It follows that where possession of the property upon which the lien is claimed has been surrendered to the debtor, the lien is lost, unless the claim of lien is recorded in the' office of the clerk of the superior court of the county where the owner of the property resides, within ten days after the work is done or the material is furnished.

2. Where, in the trial of the issue arising upon the foreclosure of such a lien and a counter-affidavit filed thereto, it appears, from the evidence, that .possession of the property upon which the lien is claimed was surrendered to the debtor before the lien was foreclosed, and the evidence fails to disclose that the claim of lien was recorded as required by law, a verdict in favor of the lien is without evidence to support it, and it is error to overrule a ground of the motion for a new trial specifically raising this point, although at the trial there was no motion raising the point that the failure of the plaintiff to record his claim of lien, operated to defeat the lien. Judgment reversed.  