Badger Lumber & Coal Co. v. Robertson

• Citation: 297 S.W. 99
• Decision Date: 27 June 1927
• Docket Number: No. 16012.,16012.
• Parties: BADGER LUMBER & COAL CO. v. ROBERTSON et al.
• Court: Court of Appeal of Missouri (US)

297 S.W. 99

BADGER LUMBER & COAL CO. v. ROBERTSON et al.

No. 16012.

Kansas City Court of Appeals, Missouri.

June 27, 1927.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

Suit by the Badger Lumber & Coal Company against A. F. Robertson and others for the adjudication of liens on real estate, in which other lien claimants were made parties and filed a cross-petition. From a judgment dismissing the suit as to all except defendant A. F. Robertson, plaintiff appeals. Affirmed.

Morrison, Nugent, Wylder & Berger and H. L. Hassler, all of Kansas City, for appellant.

Paul R. Stinson and Rosenberger McVey & Freet, all of Kansas City, for respondents.

WILLIAMS, C.

On March 22, 1924, the Badger Lumber company, plaintiff herein, in its petition alleged the furnishing of materials to defendant Robertson, who was a contractor. This material was used in the construction of a dwelling house located upon the lot in Kansas City, Mo., owned by defendant Seth P. Aber. Payment not having been made, plaintiff within four months after the account accrued filed its mechanic lien in the office of the clerk of the circuit court of Jackson county, Mo., at Kansas City, and prior thereto having served the required 10 days' notice upon the owner. Within 90 days plaintiff filed its petition in equity for the adjudication of all liens upon the real estate. Other liens had been filed or were of record, and all were made parties. The May term, 1924, was the return term. The lien claimants who were made parties filed answer and cross-petition setting up and seeking to enforce their respective liens. Seth P. Aber, who had been succeeded as owner by Grace Crooks, filed general denial, as did Grace Crooks. The Rieger-Moore Realty Company, beneficiary in a first deed of trust, filed its answer setting up its interest under the deed of trust and further denied generally the allegations of plaintiff's petition.

In September term, 1924, Arthur E. Price asked to be made party defendant, which was accordingly done. In the separate answer of Arthur E. Price, he alleged that he was the purchaser of the note secured by a second deed of trust which appeared upon the second, as C. A. Beal being the beneficiary. Price further alleged that his lien was prior to all other liens, except the lien of the first deed of trust. During the May term, 1925, of said court, defendant Price filed an amended answer and cross-petition which was practically the same as his original answer, except in the amended answer he alleged that prior to the filing of plaintiff's petition herein, and on the 21st day of December, the defendant Long-Bell Lumber Company had filed its petition against defendant Robertson, and against defendants Aber, Rieger-Moore Realty Company, C. A. Beal, Bulger-Woolf Cement Company, and Independence Stove & Furnace Company.

It is further asserted in said answer that the Long-Bell Lumber Company's suit was a suit in equity, and was brought for the purpose of establishing and determining the rights and priorities of the parties. Price in his amended answer further prayed the court to dismiss plaintiff's petition.

A reply was filed denying generally the allegations of new matter contained in the answer.

On June 16, 1925, and during the May term of said court, defendant Rieger-Moore Realty Company filed its answer alleging the prior suit of the defendant Long-Bell Lumber Company.

It appears that on December 21, 1920, the Long-Bell Lumber Company filed its suit making the contractor, owner, and holders of liens of record parties. Long-Bell Lumber Company's suit and plaintiff's suit were assigned to Division No. 9 for trial Prior to the trial of the Long-Bell Lumber Company suit plaintiff herein filed its motion to consolidate the suits. The record does not show any ruling upon this motion.

A trial was had on plaintiff's petition and upon the pleadings and evidence, and the trial court held it had no jurisdiction of the cause, or of the defendants, except A. F. Robertson, the contractor, against whom a money judgment was entered dismissing the suit as to the other defendants, and no lien was allowed. From this judgment and decree plaintiff has, in due time and in proper manner, brought the case here on appeal.

The one question presented involves a construction of section 7240 et seq., R. S. Mo. 1919. In the said sections it is provided that all of the rights may be "adjudicated, determined and enforced in one action which may be...