South Missouri Lumber Co. v. Wright

• Citation: 114 Mo. 326,21 S.W. 811
• Parties: SOUTH MISSOURI LUMBER CO. v. WRIGHT et al.
• Decision Date: 27 February 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 811

114 Mo. 326

SOUTH MISSOURI LUMBER CO. v. WRIGHT et al.

Supreme Court of Missouri, Division No. 1.

February 27, 1893.

MECHANIC'S LIEN — STATEMENT — COMMENCEMENT OF SUIT — VENUE — PLEADING.

1. Where a lien statement omits part of the land included in the lien, the claimant may correct the mistake by filing a correct statement at any time within the period for filing lien statements.

2. Under Rev. St. 1889, § 2013, which declares that the filing of a petition in a court of record, and suing out process thereon, shall be taken and deemed the commencement of a suit, a suit is begun from the time the petition is filed.

3. Acts 1871, p. 28, § 18, provides that suits to enforce mechanics' liens on property in Kaw and Westport townships, in Jackson county, shall be brought in the circuit court at Kansas City, and that said court shall have exclusive jurisdiction of appeals from the probate court at Kansas City, and from inferior courts held in Kaw and Westport townships. Held, that a petition filed in the circuit court at Kansas City to foreclose a mechanic's lien on property alleged to be located in Kansas City need not state that it was located in either Kaw or Westport townships, since it was clear from the act itself that Kansas City was located within those townships.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Suit by the South Missouri Lumber Company against John A. Wright and others to foreclose a mechanic's lien. Plaintiff obtained judgment. Defendants appeal. Affirmed.

Kinley & Kinley, for appellants. Palmer & Palmer and Wallace Pratt, for respondent.

BLACK, C. J.

This is a suit against John A. Wright and some 20 other persons to enforce a mechanic's lien for lumber sold and delivered to Wright, and by him used in the erection of eight houses on four contiguous lots in Kansas City. The last item was delivered on the 24th June, 1889. In the following July, Wright conveyed the lots to Samuel Foster, to secure certain indebtedness held by Charles Hicks. The circuit court gave judgment establishing the mechanic's lien, and the defendants Foster and Hicks only appealed. The chief defense urged here is that plaintiff lost its lien, because it did not commence this suit against Wright, the owner of the property, within the time prescribed by law. The plaintiff filed two lien accounts with the clerk of the circuit court, one on the 5th and the other on the 21st December, 1889. The account for lumber is the same in each, but the first omitted one house and a half of one lot on which the house stood. The second corrected this error. The petition in this case was filed with the clerk of the circuit court on the 28th December, 1889, and on that day the clerk issued a writ of summons for all of the defendants named in the caption of the petition. By a clerical mistake the name of Wright was omitted in the caption, and hence his name was not inserted in the writ. He is, however, repeatedly designated in the body of the petition as "defendant John A. Wright," and the whole structure of the petition is upon the theory that he was a defendant. The petition, when filed, was indorsed in the name of the plaintiff against "John A. Wright et al.," and the wrapper containing the papers was indorsed in the same way. The clerk kept what is called an "appearance docket," showing the persons for whom writs were issued, but the name of Wright does not appear on this docket. The clerical error was corrected, by the consent of the court, by inserting the name of Wright in the caption of the petition on the 15th February, 1890, though no formal order allowing the correction was made until the day of trial, in the following November. On the 11th March, 1890, the attorney for the plaintiff filed with the clerk a memorandum directing an alias summons to be issued for Wright and other named persons who had not then been served. There was indorsed on the wrapper containing the papers the words "Alias to April term, 1890," but it seems no such writ was issued. On the 21st April, 1890, the defendant Wright entered his appearance, and, later on, the court ordered the original writ to be amended by inserting the name of Wright, and it was so amended.

1. The first inquiry is, when was the lien statement filed, — on the 5th or 21st December, 1889? The statute makes it the duty of every person claiming such a lien to file with the clerk of the circuit court a just and true account, etc., setting forth a "true description of the property upon which the lien is intended to apply," within a designated time. It was said in Mulloy v. Lawrence, 31 Mo. 583, that the plaintiff could have but one lien, and, if he failed to sue in proper time after filing it, he could not cure the neglect by filing the same lien again. In the present case the second lien was filed, not for the purpose of extending the time in which to sue, but to correct an error. The case is more like that of Davis v. Schuler, 38 Mo. 28. There the paper filed as and for a lien by a subcontractor was void, because he failed to give the required notice before filing the lien, and it was held he could give the proper notice, and then file a second lien statement. The first was in fact no lien at all. So, where the plaintiff filed a lien giving a lumping statement of the debits and credits, it was held he could file a second one, giving the items of work done and prices charged, as required by law. Williams v. Railroad Co., (Mo. Sup.) 20 S. W. Rep. 631. In this case the plaintiff had the right to include in one lien all of the houses and lots, for the case made comes within section 6729, Rev. St. 1889. While the first lien was not void, as in the two cases last cited, still it was defective, in this: that it omitted one house and the half of one lot. Being a defective and incomplete lien statement, the plaintiff could file a perfect one at any time within the period prescribed for filing lien statements. The reason and justice of the rule allowing a second statement to be filed when the first is worthless applies as well to a case like this, where the statement omits a part of the property. The date of filing the lien is therefore the 21st December, 1889.

2. The next inquiry is whether this suit was, to use the language of the statute, "commenced within ninety days after filing the lien." A section of the Code of Civil Procedure provides that "suits may be instituted in courts of record" by filing in the office of the clerk of the proper court a petition and the voluntary appearance of the adverse party, or "by filing such petition in such office, and suing out therein a writ of summons against the person, or of attachment against the property, of the defendant." This section was amended in 1889 by adding thereto this sentence: "The...