Colorado § 38-22-112 - Allegations of complaint.

§ 38-22-112. Allegations of complaint.

It is sufficient to allege in the complaint in relation to any party claiming a lien whom it is desired to make a defendant, that such party claims a lien under this article upon the property described; and in case of the intervention of parties, or of the making of new parties, or of the consolidation of actions, so that the issues are in any manner changed or increased, any party to the action shall be allowed to amend his pleadings, or file new pleadings, as the nature of the case may require.

Source: L. 1899: p. 273, § 12. R.S. 08: § 4036. C.L. § 6453. CSA: C. 101, § 26. CRS 53: § 86-3-12. C.R.S. 1963: § 86-3-12.

ANNOTATION

Complaint must contain every fact necessary in the creation of a lien. Ark. River Land, Reservoir & Canal Co. v. Nelson, 4 Colo. App. 438, 36 P. 307 (1894); Mouat Lumber & Inv. Co. v. Freeman, 7 Colo. App. 152, 42 P. 1040 (1895).

In order to entitle a plaintiff to maintain a suit in the nature of a bill in equity to foreclose a mechanic's lien, he must in his complaint allege everything essential to the existence and establishment of his claim, and by allegations — both specific and general — bring himself literally within the terms of this article. Ark. River, Land, Reservoir & Canal Co. v. Flinn, 3 Colo. App. 381, 33 P. 1006 (1893).

Allegations put in issue must be proved at the trial, whether appearing in the lien statement or not. Mouat Lumber & Inv. Co. v. Freeman, 7 Colo. App. 152, 42 P. 1040 (1895).

In an action to enforce a mechanic's lien against the vendor for labor and materials furnished in making improvements under a contract of sale that required the purchaser to make improvements to a certain value, it was not necessary to allege or prove that the purchaser had not exceeded that amount in making the improvements; if the owner of the property sought to escape liability on the ground that his agent had exceeded the limits of his powers in making the contract for the improvements, it was his duty to aver and prove it. Colo. Iron Works v. Taylor, 12 Colo. App. 451, 55 P. 942 (1899).

Applied in Hall v. Cudahy, 46 Colo. 324, 104 P. 415 (1909); Clark Hdwe. Co. v. Centennial Tunnel Mining Co., 22 Colo. App. 174, 123 P. 322 (1912).