Baltis v. Friend
Court of Appeals of Kansas
Appeal from Harrison Circuit Court. — Hon. Paris C. Stepp, Judge. (1) The lienor must stand or fall by the lien which he files, and the dates and items and amounts which he specifies in the lien; and a variance between the lien and the pleading and proof offered in the case will be fatal. Poppert & Son v. Wright, 52 Mo. App. 576; Coe v. Eitter, 86 Mo. 278; Bruns v. Braun, 35 Mo.
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Appeal from Harrison Circuit Court. — Hon. Paris C. Stepp, Judge. (1) The lienor must stand or fall by the lien which he files, and the dates and items and amounts which he specifies in the lien; and a variance between the lien and the pleading and proof offered in the case will be fatal. Poppert & Son v. Wright, 52 Mo. App. 576; Coe v. Eitter, 86 Mo. 278; Bruns v. Braun, 35 Mo. App. 337. (2) No notice of plaintiff’s intention to file a lien having been served on the landowner, Ereeman L. Eriend, and there being a fatal variance between the pleading and proof offered in evidence, and the…
1Opinion of the CourtEllison, J.
This action is to enforce a mechanic’s lien. The judgment in the trial court was for plaintiff for his account and for an enforcement of the lien.
Defendants’ first objection to the action of the trial court is that plaintiff was permitted to amend his petition after the close of the evidence. This amendment was made so that the petition would conform to the proof; it is allowable by statute (Section 2098, Revised Statutes 1899), and did not create a variance between the petition and proof. The defendant was evidently not misled or harmed. The objection was not well taken.
It is next contended…
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