¶1On Motion for Rehearing.
¶2For the first time, on this motion for rehearing, it is argued to the Court that judgment dismissing plaintiff’s (appellant’s) complaint is erroneous in that the complaint states a cause of action on account stated and that plaintiff is entitled thereunder to seek personal judgment against the defendants Sedillo, separate and apart from his claim to foreclose a mechanic’s lien.
¶3We are of the opinion allegation 6 of the complaint, already quoted in our earlier opinion, does sufficiently set forth a claim upon account stated and that plaintiff should be allowed to go to trial thereon.
¶4The defendants call our attention to the following language from State ex rel Denton v. Vinyard, 1951, 55 N.M. 205, 209, 230 P.2d 238, 240:
“ … While we recognize that the prayer or demand for relief is no part of a cause of action and that a complaint is not subject to motion to dismiss by reason of the prayer or the lack of it, 41 Am.Jur., Pleading, §§ 83, 110, it does not follow that the pleader is under no obligation to let the trial court know the nature of the relief he desires and invoke a ruling thereon, if the question is to be reviewed on appeal. … ”
¶5It is true that the instant complaint was obviously intended to state a cause of action for foreclosure of mechanic’s lien; it was so presented to and considered by this Court. However, we notice in the record that on March 22, 1954, the plaintiff moved the lower court for further hearing upon the motion for judgment on the pleadings upon various grounds, including the following:
“3. Among other matters alleged as to the indebtedness covered by the mechanic’s lien, the complaint alleges an account stated. The defendant denies that there is an account stated. Exhibit C attached to the complaint and made a part thereof shows a balance in the sum of $1502.60; this is the amount alleged to have been agreed upon by defendants, Dan R. Sedillo, also known as Dan Sedillo, and Emelia Sedillo, his wife, as owing to the plaintiff.
“4. There is nothing in the pleadings in the case which shows any fact which would overcome the allegation that there is a balance owing to plaintiff on account of materials furnished and labor done.”
¶6 The matter having thus been raised in the lower court, we are of the opinion plaintiff has brought himself within the rule that a complaint will not be dismissed on motion therefor unless it appears that under no state of facts provable under the claim could plaintiff recover or be entitled to relief and that lack of an appropriate prayer is immaterial in ruling on such motion. See: Eyring v. Board of Regents, Etc., 1955, 59 N.M. 3, 277 P.2d 550; Crawford v. Taylor, 1954, 58 N.M. 340, 270 P.2d 978; Ritter v. Albuquerque Gas & Electric Co., 1943, 47 N.M. 329, 142 P.2d 919, 153 A.L.R. 273.
¶7All other matters raised in plaintiff’s motion for rehearing relating to this court’s disposition of appeal as to claim for enforcement of the mechanic’s lien are found to be without merit. Accordingly, we reaffirm our holding the trial court was correct in denying foreclosure of the claimed lien, but the case is reversed and remanded with direction to the lower court to reinstate plaintiff’s complaint and permit trial of the issues only as to the personal claim against the defendants Sedillo on account stated. It is so ordered.