Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 72
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72 A. & N. W. R'Y Co. v. DANIELS. [Austin Term,
Opinion of the court.
The special exceptions of appellant to the sufficiency of the petition
are as follows:
"1. It states no cause of action against this defendant.
"2. The facts constituting plaintiff's alleged cause of action are
not set forth with sufficient certainty.
" 3. The facts averred, if true, do not create a lien upon the railroad,
equipments, etc., of this defendant.
"4. No privity of contract between this defendant and plaintiff,
or between this defendant and plaintiff's alleged assignors, is shown.
"5. It does not appear therefrom that there is anything due and
owing or to become due and owing from this defendant to said
Sandford & Son under the alleged contract between it and them.
"' 6. Because under the allegations of said petition it appears that
plaintiff is seeking to enforce against this defendant's road-bed, etc.,
the lien of a contractor, builder or material-man when no such lien
is given by law.
"7. Because, in its averments of fact, said petition is vague, indefinite,
inconsistent and uncertain.
"8. Because it cannot be determined therefrom whether any labor
has been expended, nor by whom, in the construction, repair or operation
of this defendant's railroad and railroad equipment."
This action is based, so far as appellant is concerned, upon the act
of February 18, 1879, entitled "An act to protect mechanics, laborers
and operators on railroads against the failure of owners, contractors
and subcontractors or agents to pay their wages when due,
and provide a lien for such wages." Appendix, R. S., p. 4. Section
1 provides "that all mechanics, laborers and operatives, who
may have performed labor in the construction or repair of any railroad,
locomotive, car or other equipment to a railroad; or who may
have performed labor in the operating of a railroad, and to whom
wages are due or owing, shall hereafter have a lien prior to all others
upon such railroad and its equipments for such wages as are unpaid."
Section 2 provides that "in all suits for wages due by a railroad
company for such labor as heretofore mentioned, upon proof being
satisfactorily made that such labor had been performed, either at
the instance of said company, a contractor or subcontractor or
agent of said company, and that such wages are due, and the lien
given by this act is sought to be enforced, it shall be the duty of
the court having jurisdiction to try the same, to render judgment
for the amount of wages found to be due, and to adjudge and order
said railroad and equipments, or so much thereof as may be necessary,
to be sold to satisfy said judgment."
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/94/: accessed July 22, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .