224 La. 825

#### DAVIS-WOOD LUMBER CO., Inc. v. WOOD.

No. 40378.

Supreme Court of Louisiana.

Feb. 15, 1954.

Archie M. Suthori, New Orleans, and Philip E. Pfeifer, Covington, for plaintiff-appellant.-

Ellis C. Irwin and Siegfried B.. Christensen, New Orleans,, for defendant-appellee.

FRUGÉ,-Justice ad hoc.

The Davis-Wood Lumber Company, Inc., having instituted suit to recover the sum of $20,624.35 for supplies, materials, and labor furnished the defendant, -Robert M. Wood, Jr., in the construction of a house, and to-have its lien and privilege duly recorded in the office of the Recorder" of ’Mortgages recognized, is appealing-from a judgment of the lower court cancelling the said lien on a rule taken by the defefidant.

The basis of the rule., for-the erasure and cancellation of the lienfiS-Jl) it is composed in part of matters, .for which -no,, such .lien can be given,. (2) it does not Comply,, with the requisites of the,law, and .(3) .it was not timely filed¡ ..... .

Under the express provisions of LSA-R. S.9:4812 (which is a reproduction in the Revised Statutes ’ of 1950 of'’Section 12 of Act 298 of 1926, as airierided and re-eriacted by Section 1 of. Act 323 of' 1938)' it is stated:

> “When the owner,.or his authorized agent, undertakes the .work of construction, improvement, repair, erection, or reconstruction, for the account *126of the owner, for. which.no contract has been entered into, or when a contract has been entered into but has riot been recorded, as and when required, then any person furnishing' service or material or performing áriylábor on the said building" or other work may record in the office of the clerk of court of recorder of mortgages in the parish in which the said work is being done or has been done, á copy of his estimate-or an affidavit of his claim or any other writing evidencing sáme, which record-ation, if done within sixty days after the date of the last delivery of all material upon the said property or the last performance of all services or labor upon the same, by the said furnisher of material or the said laborer, shall create a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have performed service or labor or delivered material in connection with the said work or- improvement, as his interest may appear.

According to the fact.s as disclosed by the record, the lien was clearly filed within the sixty-day period.

Under the plain wording of this section a person furnishing material or service to, or performing any labor for, the owner need only file an affidavit of his claim within sixty days after the date óf the last delivery of material -to said-property or the last performance of labor thereon in order to create a lien.- It would seem then that the owner of the property against which a. lien is filed who seeks to have the recordation cancelled and erased by a rule to show cause -merely calls upon the person recording the lien to show some color of right to, the lien and that the affidavit or other writing evidencing the claim was timely filed. To go further and require the person recording the lien to prove the validity of each item making up-his claim.on the rule to show cause-would be to try the merits Of the case by rule. ■ ■

On the trial of -the rule, plaintiff showed :thgt.materials, were furnished for the construction of the house on September 29, 1949. The affidavit by the president of the plaintiff company which was recorded on November 17, 1949, was clearly within the sixty day period. The affidavit by the plaintiff in this case set out the, nature of the claim, the amount thereof, and the property it was asserted upon. Such is all that the law requires......

The statement of account attached to the affidavit shows that the amount of the lien contains monies advanced by plaintiff to defendant to pay for labor performed on the house and payments by plaintiff to laborers -on behalf of defendant for labor, performed on the house and payments by plaintiff for workmen’s com-' pensation insurance and builder’s risk insurance. It is these items which the trial court felt -were “non-lienable” and which destroyed the effect of the lien. . As stated above this would go to the merits of the case, and defendant in a rule to show cause why the lien should not be erased .and can-celled-is not then called upon tp prove up the validity of each item making up his lien. There is no doubt that materials were furnished the owner for construction of the-house. If on the .trial on the merits certain items claimed are found to be “non-lienable” they should then be excluded from the amount for which the lien is recognized. The fact that plaintiff may riot on the trial of the case be able to prove the entire amount of the lien claimed is no reason why the lien should be,cancelled and erased.

For the reasons assigned, the judgment of the district court is annulled and-set aside, and.,the rule to show cause why the lien recorded November 17, 1949, in M.O.B. 171, Folio 9 and re-inscribed on November 16, 19S0 in M.O.B. 186, Folio 487, Parish of Jefferson, Louisiana, bearing'on the property fully described iri Article 3 of plaintiff’s petition shorild not be caricelled and erased is dismissed; Robert M. Wood, Jr., defendant in-rimin demand and plaintiff in rule to' pay costs. 1 ■ 1 -