Ashburn v. Ayres

• Decision Date: 31 January 1859
• Citation: 28 Mo. 75
• Parties: ASHBURN, Respondent, v. AYRES et al., Appellants.
• Court: Missouri Supreme Court

28 Mo. 75

ASHBURN, Respondent,

v.AYRES et al., Appellants.

Supreme Court of Missouri.

January Term, 1859.

1. The Kansas court of common pleas has no jurisdiction of actions to enforce mechanics' liens.

2. Where a material man institutes proceedings to enforce a lien against the contractor and the owner of the building, and dismisses the same as to the original debtor, the contractor, the proceeding must also be dismissed as to the owner of the building, there being no party on the record to defend the suit.

Appeal from Kansas Court of Common Pleas.

Ewing, for appellant.

I. The circuit court has exclusive jurisdiction of actions to enforce mechanics' liens. (R. C. 1855, p. 1065; Gaty v. Brown, 11 Mo. 140.) But if the Kansas common pleas has jurisdiction of the subject matter, it does not so appear from anything averred in the petition. Its jurisdiction is limited to the township of Kaw; (Sess. Acts, 1855, p. 60, § 1 & 19;) and it is not shown by averment that the building is within the township. Nothing is to be presumed in favor of the jurisdiction of that court.

II. Plaintiff having dismissed the suit as to Ayres, there was no party to the record who could defend the suit. The contractor is the only person who can contest the validity of the demand, and there could be no judgment against Bryant, the proprietor of the building. (Wibbing v. Powers, 25 Mo. 600.)

SCOTT, Judge, delivered the opinion of the court.

The important question in this case is whether the court had jurisdiction to enforce a mechanic's lien. The eleventh section of the act concerning mechanics' liens provides that any person having a lien under or by virtue of this act may bring suit to enforce the same in the circuit court of the county wherein the property on which the lien is attached is situated, without regard to its amount. In the case of Gaty, McCune & Glasby v. Brown, 11 Mo. 138, the terms of the statute conferring jurisdiction on the court of common pleas of St. Louis county were as broad as those employed in defining the jurisdiction of the Kansas court of common pleas, and it was held that the circuit court alone had jurisdiction to enforce the liens of mechanics, as the lien, the foundation of the action, was filed in the circuit court and there was no provision by which it could be transferred to another court. The liens under the act have priority in the order of filing them in the clerk's office of the circuit court. Where there are many liens on the same building, it would produce great confusion if different courts could enforce their judgments by executions against it. The court in which the liens were not required to be filed could know nothing of them. The sales would be made at places remote from the record of liens, and purchasers might be misled or the property sacririced by reason of the uncertainty of their existence. The present lien law, unlike those that formerly prevailed, is silent as to the manner in which executions against property subject to lien shall be issued. Under such circumstances, it would seem all-important that the sales should take place in a situation convenient to the records. The circumstance that a lien, the amount of which is within the jurisdiction of a justice of the peace, is authorized to be enforced in the circuit court, carries with it a strong...