Fury v. Boeckler

• Decision Date: 07 May 1878
• Parties: JOHN F. FURY, Appellant, v. ADOLPH BOECKLER ET AL., Respondents.
• Court: Missouri Court of Appeals

6 Mo.App. 24

JOHN F. FURY, Appellant,

v.ADOLPH BOECKLER ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

May 7, 1878.

The ninety days after which no lien is to continue to exist unless the statutory conditions are complied with are not a period of repose, to bar actions, but are a limit to the existence of the lien; and where a subcontractor fails to make the original contractors parties defendant in a suit against the owner to enforce a mechanic's lien against the property, he cannot bring them in after the expiration of the ninety days.

APPEAL from St. Louis Circuit Court.

Affirmed.

FISHER & ROWELL, for appellant: The court has the power to allow the contractors to be brought in and made parties defendant.-- Foster v. Skidmore, 1 E. D. Smith, 703; Scoville v. Chapman, 17 Ind. 470; Witte v. Meyer, 11 Wis. 295; Hartman v. Sharp, 51 Mo. 30; Mann v. Schorer, 50 Mo. 306. Where the lien is given, the statute is to be liberally construed and the lienor allowed the greatest latitude in perfecting his lien.-- Goodin v. Duross, 5 Mo. App. 289; Putnam v. Ross, 46 Mo. 337; Oster v. Rabenau, 46 Mo. 595.

H. N. HART, for respondents.

HAYDEN, J., delivered the opinion of the court.

This is a suit to enforce a mechanic's lien for painting, etc., done upon a house by a subcontractor. The original petition, filed on August 19, 1875, though it stated who the original contractors were, did not make them defendants, but pursued only the owners of the property. Afterwards and on January 21, 1877, the plaintiff, by leave, filed his amended petition, in which the contractors were made defendants, and to which they subsequently filed their answer. The original defendants, the owners, afterwards filed a motion to set aside the order of court by which leave was granted to the plaintiff to file his amended petition, and to strike from the files that petition and the appearance and answer of the original contractors. This motion the court below sustained, set aside the order as made, and directed that the amended petition by which the contractors were brought in be struck from the files. The plaintiff then filed another petition, in which the owners alone were made defendants, and upon demurrer to this petition judgment was finally given for the defendants.

It ought not to seriously be contended that where a subcontractor sues he may in spite of objection properly taken make the owners defendants and obtain a special judgment without joining the contractors. Intimations of this kind, if they have fallen from courts, in reference to statutes like our own should be regarded as inadvertencies. No privity of contract exists between owner and subcontractor: the contractor is the link which connects the two. It is manifestly unjust to the owner, against whom the law operates with sufficient hardship if fairly construed, that apart from the contractor he should be forced to defend against a claim of which he may know nothing. The law, on this point should be regarded as settled. Wag. Stats. 910, sect. 9; Horstkotte v. Menier, 50 Mo. 158; Putnam v. Ross, 55 Mo. 116; Hassett v. Rust, 64 Mo. 325.

In the case at bar the subcontractor chose to sue without making any of the original contractors defendants. They were...