Badger Lumber Co. v. Goodrich

• Decision Date: 04 December 1944
• Docket Number: 39124
• Citation: 184 S.W.2d 435,353 Mo. 769
• Parties: Badger Lumber Company v. Fred W. Goodrich, Appellant, and C.W. Corey, Cross-Petitioner and Respondent
• Court: Missouri Supreme Court

184 S.W.2d 435

353 Mo. 769

Badger Lumber Company v. Fred W. Goodrich, Appellant, and C.W. Corey, Cross-Petitioner and Respondent

No. 39124

Supreme Court of Missouri

December 4, 1944

Rehearing Denied January 2, 1945.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed and remanded.

W H. H. Piatt for appellant.

(1) Appellant is deprived of his property in violation of Sections 4, 10, and 30, Article II, Missouri Constitution, and Section 1 of the Fourteenth Amendment of the Constitution of the United States. (2) The writ of coram nobis lies when the court has proceeded in a case, as though a fact, to its right -- jurisdiction to proceed existed -- when it did not exist and when the absence of the fact assumed to exist entirely defeats the power of a court to attain a valid result in its proceeding. Cross v. Gould, 131 Mo.App. 484; General Motors Acceptance Corp. v. Lyman, 78 S.W.2d 109; Townsend v. Boatmen's Bank, 148 S.W.2d 85; Crabtree v. Aetna Life Ins. Co., 111 S.W.2d l.c. 103. (3) When a lien proceeding complying with the equity statute is instituted, the filing of any other lien suit against the property is a nullity and in effect is held stricken from the record. And in the instant case the failure of the Badger action to make the parties defendant the parties in the Corey case, is a non-compliance with the statute that renders the Badger petition and proceeding a nullity. Macklind v. Ferry, 108 S.W.2d 21; Richards Brick Co. v. Wright, 82 S.W.2d 274; Badger Lumber & Coal Co. v. Robertson, 297 S.W. 99. (4) Judgment against Goodrich on the cross-petition of Corey is a nullity for want of service and notice thereof. It is a new, different petition and contravenes the statutes, R.S. Mo. 1939, and the intendments thereof of Sections 876, 877, 921, 963, 972, 982, and Rule 6 of the court. Thompson v. Allen, 86 Mo. 85. (5) The Corey cross-petition lien claim on its face is a journeyman and day laborer claim and not an original contractor claim, and is governed by Section 3551, R.S. 1939, and was barred at the time it was filed and conferred no jurisdiction on the court to entertain it. The case of McKay v. Delico Meats Product Co., 174 S.W.2d 149.

Langworthy, Matz & Linde and E. F. Halstead for respondent Badger Lumber Company.

(1) Long prior to the rendition of judgment of the circuit court, defendant Goodrich had knowledge of all facts and full opportunity to present, to the circuit court, the matters now complained of. Having neglected to take such action, he cannot now be heard to complain. Reed v. Bright, 232 Mo. 399, 134 S.W. 653. (2) If the suit of plaintiff, Badger Lumber Company, Inc., came within the provisions of Secs. 3570-3577, R.S. 1939, the circuit court had jurisdiction to determine the same; if the suit did not come within said sections, by reason of any omission of claimed necessary parties, it came within the provisions of Secs. 3554 and 3555, R.S. 1939, and the court had full jurisdiction to hear and determine plaintiff's lien. Secs. 3554-3555, 3570-3577, R.S. 1939.

V. E. Phillips and Guy M. Boyer for respondent C. W. Corey.

(1) This court does not have jurisdiction because: (a) the title to real estate is not involved so as to give this court jurisdiction in an equity mechanic's lien suit, (b) the amount in dispute is less than $ 500, (c) appellant goes outside the record in his statement that the property is worth $ 10,000 for there is no evidence of any kind as to its value. Frey v. Leidigh & Havens Lbr. Co., 88 S.W.2d 863; Weil v. Richardson, 7 S.W.2d 348. (2) The present proceeding does not fall within the scope of writ of error coram nobis. Crabtree v. Aetna Life Ins. Co., 111 S.W.2d 103; Townsend v. Boatmen's Bank, 148 S.W.2d 85. (3) The petition of Badger Lumber Company, Inc., v. Goodrich and Corey stated a cause in equity under the mechanic's lien statutes. Secs. 3570, 3572, 3573, R.S. 1939. (4) The court had jurisdiction to enter the equity mechanic's lien decree because the cross-petition of Corey was germane to plaintiff's petition and no service of the Corey cross-petition on Goodrich was necessary. 49 C.J., p. 314, sec. 385; Martin v. Jones, 228 S.W. 1051; Crawford v. Amusement Co., 37 S.W.2d 581; Jones v. Jones, 30 S.W.2d 49; Early v. Smallwood, 256 S.W. 1053. (5) The manner of serving the listing card was according to the rules of court and the publication in the daily record of the setting of cases was notice to all the parties. (6) The trustee in a deed of trust does not hold the legal title and is not a necessary party. Coleman v. Crescent Insulated Cable Co., 168 S.W.2d 1065; Lustenberger v. Hutchinson, 119 S.W.2d l.c. 928; In re Thomasson's Estate, 171 S.W.2d l.c. 563.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

The present cause is based on a petition or motion by Fred W. Goodrich in the nature of a writ of error coram nobis to vacate the judgment in a mechanic's lien suit in the circuit court of Jackson County. The judgment sought to be vacated was entered December 22, 1941, and the motion to set aside was filed January 13, 1944. Relief was denied and Goodrich appealed.

Counsel for respondent Corey say that this appeal does not lie to the supreme court. It is argued that mechanics' liens only are involved and not title, and that the amount in dispute is the amount of the mechanics' liens, a total of $ 397.92, plus interest. It will not be necessary to determine the question of jurisdiction on title and amount in dispute, but as to the latter we might say that appellant contends that the amount in dispute is the value of the involved lot and building, a three-story and basement brick and stucco apartment, and the value, according to appellant is from $ 10,000 to $ 14,000, and rents, so stated, for $ 220 per month. It is not contended that the value of the property is not as appellant suggests, but the point is that value is not shown by the evidence. But one of the grounds upon which appellant commenced this proceeding, and on which, with others, he still stands, is that the manner of obtaining the judgment he seeks to set aside was a denial to him of due process in violation of Sec. 30, Art. 2, Constitution of Missouri, and the due process clause of the 14th Amendment, Constitution of the United States. Jurisdiction of the appeal is in the supreme court. Aufderheide et al. v. Polar Wave Ice & Fuel Co., 319 Mo. 337, 4 S.W.2d 776, l.c. 799; Clutter v. Blankenship et al., 346 Mo. 961, 144 S.W.2d 119, l.c. 120; Fisk v. Wellsville Fire Brick Co., 348 Mo. 73, 152 S.W.2d 113, l.c. 115. Denial of due process was one of the grounds of complaint in Hecht Bros. Clothing Co. et al. v. Walker et al., 224 Mo.App. 1156, 35 S.W.2d 372, a coram nobis proceeding to set aside a judgment, and the appeal was entertained by the St. Louis Court of Appeals, but the question of jurisdiction was not raised.

August 14, 1939, the trustees of Class B Assets of the Jackson County Savings & Loan Association conveyed (deed recorded August 29, 1939) to Charles T. Altis, lot 13, block 3, Logan Park Addition, Kansas City, and known as 4644-46 Virginia Avenue, upon which lot was the apartment building mentioned. Though conveyed to Altis, appellant was the purchaser, and on August 15, 1939, Altis and wife, Eulah E., conveyed the property by warranty deed to appellant. This deed was recorded September 16, 1940. August 15, 1939, but prior to their deed to appellant, Altis and wife gave a deed of trust (recorded August 29, 1939) on the property to Kansas City Title & Trust Company, trustee, to secure their $ 7500 note payable to appellant. It is alleged in a pleading filed by the trustee in suit No. 472942 (see infra) that this note, on August 29, 1939, was endorsed and delivered to the Riverview State Bank, Kansas City, Kansas.

October 4, 1939, appellant employed respondent C. W. Corey, a carpenter, to make repairs on the apartment building, and from October 8, 1939, to May 11, 1940, both inclusive, Corey put in 1118 hours at repair work on the building and for which he charged 60 cents per hour. Over the period Corey furnished materials amounting to $ 4.24, and his total bill was $ 675.04. From October 11, 1939, to May 3, 1940, both inclusive, appellant paid Corey on this bill the sum of $ 425.00, leaving a balance due, according to Corey, of $ 250.04. Appellant obtained the material for the repairs, except the small amount furnished by Corey, from respondent Badger Lumber Company, and from October 4, 1939, to April 20, 1940, both inclusive, the Badger Lumber Company furnished material amounting to $ 313.30. Credits were given on this account for cash payments by appellant and for material returned, so that on April 20, 1940, there was a balance due, according to Badger, of $ 147.88.

August 13, 1940, Corey filed in the office of the clerk of the circuit court a mechanic's lien claim against appellant and the apartment property for $ 250.04, and on August 21, 1940, he filed suit No. 472942 returnable to the September 1940 term of the circuit court to enforce the lien. Defendants in Corey's suit were Fred W. Goodrich, appellant here, Charles T. Altis, Eulah E. Altis, his wife, and the Kansas City Title & Trust Company, trustee in the deed of trust. September 11, 1940, the third day of the September 1940 term, appellant and the Altises filed separate answers to Corey's suit. Harding, Murphy & Tucker, attorneys, prepared and filed these answers. February 11, 1943, the trustee, Kansas City Title & Trust Company, filed answer in the Corey suit.

October 3, 1940, Badger Lumber Company filed in the office of the clerk of the circuit court a mechanic's lien claim against appellant and the apartment property for $ 147.88 and on December 30, 1940, Badger filed suit No....