LEVY, J. (after stating the facts as above).
The appellant insists that the petition did not allege a cause of action against it, and therefore that its general demurrer should have been sustained. The petition does not contain sufficient averments to fix and establish a statutory lien against the property of the appellant. Sens v. Trentune, 54 Tex. 218; Fullenwider v. Longmoor, 73 Tex. 480, 11 S.W. 500; Tenison v. Hagadorn (Tex.Civ.App.) 155 S.W. 690.
The appellees seem to concede that, "Had the demurrer been presented to the petition, it might have been sustained." However, they insist that, as there is an absence in the record of any action of the court upon the demurrer, the demurrer "should be presumed by this court to have been waived." There are cases holding that a general demurrer may be waived, and cases holding that it may be raised on appeal even though not presented in the trial court. These cases are reviewed and the differences nicely and very correctly stated by Justice Moursund in the case of City of San Antonio v. Bodeman (Tex.Civ.App.) 163 S.W. 1043. We think the correct rule is, where, in a given case, the petition, tested by its own averments, fails to state a cause of action, that a demurrer may be interposed at any time. The reason is that unless the petition states a cause of action the court is lacking in jurisdiction to render a legal judgment. It is of vital importance, in order to establish a purely statutory lien, that every prescribed necessary legal requirement be substantially complied with.
The judgment is reversed, and the cause remanded.