
    
      A. Heheman v. Samuel B. Snead, etc.
    Partition — Apportionment of Cost of improvement — Action to Recover— Necessary Parties.
    All persons who by apportionment are to pay any part of the cost of improvements, for which liens are given, shall be made parties to any proceedings for the enforcement of such liens, unless they have paid their part of the cost agreeable to the apportionment, which fact shall be alleged in the petition.
    
      APPEAL PROM LOUISVILLE CHANCERY COURT.
    June 15, 1871.
    
      Russell, for appellant.
    
    
      Coke & Argegast, for appellees.
    
   Opinion by

Judge Lindsay :

The provisions of the act approved March 9, 1868, 2d Vol., Acts 1867-68, page 410, certainly prevent this case from coming within the principles governing the case of Hydes, etc., v. Joyce.

The 32d section of said act requires that all persons who, by apportionment, are to pay any part of the costs of improvements for which liens are given by sections-23, 24, 25, 26 and 45, shall be made-parties to any proceedings for the enforcement of such liens, unless they have paid their part of the costs agreeable to the apportionment, “which fact shall be alleged in the petition.” This allegation is properly made in the petition of appellee, but is specifically denied by the answer of the appellant.

The legislature saw proper to make the issue thus raised a material one. If any person liable by the apportionment to pay any part of the costs of the improvement by appellee had not paid the same and was not made a party defendant, the onus was upon the complaint to make out his cause of action by proof. Hence, in our opinion, the answer presented a good defense, and the court erred in sustaining the demurrer thereto.

Wherefore the judgment is reversed and the cause remanded for further proceedings consistent herewith.  