ON THE MERITS. Defendants contend, that the evidence failed to show a cause of suit in the plaintiff; specifically they point out, that the plaintiff failed to establish the liens which his complaint alleges. To secure a decree for the relief prayed for, it was essential that the evidence should prove not only that the claimants furnished the labor and materials mentioned in the complaint, but also, that they filed lien notices within the statutory period, containing the information mentioned in Section 10195, Or. L. The complaint alleged that these things were done; attached to it are three documents, which it avers are copies of the lien notices. The answer denied all averments of the complaint; thus, there was placed in issue, not only the allegations that the work was done and the materials supplied, but also those which averred that the plaintiff possessed liens upon defendants' property obtained through compliance with the statutory requirements. It follows, that the burden rested upon the plaintiff to establish by proof, that the claimants filed proper lien notices within the statutory time: 40 C.J., Mechanics' Liens, § 649.
We have carefully read the evidence and are satisfied that the claimants performed the labor and supplied the materials mentioned in the complaint. *Page 241 But the sole evidence that the Mechanics' Lien Act was complied with, is the following: when the plaintiff was upon the witness-stand his counsel inquired: "Q. You filed a lien?" "A. Yes." The claimant Johnson made the same answer to a similar question. Later in explaining another of his answers he added: "And I waited until the last day I could file my lien before I done it." There is no evidence that the claimant Douglas made any endeavor, whatever, to acquire a lien. No lien notices were produced and no explanation offered as to their contents or absence. In fact, as we said before, the above brief answers constitute the only mention of liens made in the evidence. The plaintiff's case is thus left in the position where the burden of establishing by proof, that lien notices containing the information required by Section 10195, Or. L., were filed, remains undischarged. Before he was entitled to a foreclosure of his alleged liens, it was incumbent upon him to establish them. The establishment could not be perfected without proof that the claimants filed documents within the thirty-day period of time containing the information required by Section 10195, Or. L. Under the circumstances revealed by the evidence, the plaintiff was not entitled to a decree establishing the alleged liens, and ordering their foreclosure. This portion of the relief allowed by the decree of the Circuit Court, must be withheld. Plaintiff may, however, retain these portions of the decree which grant him judgment for the value of the work performed and materials supplied: that is the sums of $190.55, $66.03 and $560.06. Under these circumstances, an attorney's fee and the filing fees for the lien notices are not recoverable; costs to the defendants.
MODIFIED. REHEARING DENIED. *Page 242