delivered the opinion of the Court:
Several important questions have been discussed, but as we think the petition is defective in not showing the requisite notice was given to entitle the sub-contractor to a lien for materials furnished and labor performed, against the property of the railroad company, under the statute, that is all the point we will consider.
It will be observed, the lien is only given on condition such sub-contractor, material-man or laborer shall have complied with the statute. One condition is, that such party shall, within twenty days after the completion of such sub-contract or labor, cause a notice in writing to be served upon the president or secretary of such railroad corporation, but if neither shall reside or can be found in the county in which such subcontract was made or labor performed, such notice shall be filed in the office of the clerk of the circuit court, and it is made the duty of such clerk to file and keep a record of such notice and to cause a copy of the same to be mailed to the president or secretary of such company. Eev. Stat. 1874, p. 672, §§ 53, 54. Whether the president and secretary of the defendant corporation, or either of them, resided in or could be found in the county where the sub-contract was made or the labor was performed, the petition is silent. All the allegation on that subject is, that petitioner did, “ within twenty days from the completion of said work and the furnishing of said lumber and material, file in the office of the clerk of the circuit court * * * a notice of his intention to obtain and perfect a lien on said Cairo and St. Louis railroad under and according to the statute.” That averment is insufficient. Petitioner was not authorized to file the notice required to be given to the railroad company with the clerk of the circuit court, unless neither the president nor secretary of such corporation shall reside or can be found in the county where the sub-contract was made or the labor was performed. It does not appear from any averment, the contingency had happened on which petitioner was authorized to file notice with the clerk of the circuit court of his intention to obtain and perfect a lien against the railroad for anything due him from the principal contractors, and hence the notice filed with the clerk is insufficient to charge defendant. The allegation is not, as counsel suggests, the notice was filed with the clerk of the circuit court “ under and according to the statute,” but the notice is of “ his intention to obtain and perfect a lien ” on the railroad “ under and according to the statute.” There is nothing in the petition or elsewhere in the record that aids the defective averment as to the notice, and it being insufficient to charge defendant, it was error to overrule the demurrer to the petition.
The judgment will be reversed, and the cause remanded.
Judgment r&oersed.