Banner Iron Works v. Ray R. Rosemond Co.

• Decision Date: 20 April 1937
• Docket Number: No. 34573.,34573.
• Citation: 107 S.W.2d 1068
• Parties: BANNER IRON WORKS v. RAY R. ROSEMOND CO., Inc., et al.
• Court: Missouri Supreme Court

107 S.W.2d 1068

BANNER IRON WORKS v.RAY R. ROSEMOND CO., Inc., et al.

No. 34573.

Supreme Court of Missouri, Division No. 1.

April 20, 1937.

Rehearing Denied June 30, 1937.

Appeal from St. Louis Circuit Court, Division No. 2;O'Neill Ryan, Judge.

Equitable mechanic's lien action by Banner Iron Works, against Ray R. Rosemond Company, Incorporated, and others.From a judgment establishing various liens, the plaintiff and defendantWilliam H. Stubblefield, trustee, Sarah Olzem, Samuel P. Simon, and Louise O. Simon, appeal.

Affirmed.

Dunbar & Dubail and Bryan Wilson, all of St. Louis, for appellantsWilliam H. Stubblefield, trustee, et al.

Carter & Jones and Oliver F. Erbs, all of St. Louis, for respondentWiles-Chipman Lumber Co.

Arthur U. Simmons, of Clayton, and Oliver F. Erbs, of St. Louis, for respondentSterling Flooring Co.

Cobbs & Logan and Walter L. Roos, all of St. Louis, for respondentWilliam A. Tipton, Inc.

PER CURIAM.

This is an equitable mechanic's lien action in which various claimants sought to establish separate liens against the property in question for their respective claims.The case was sent to a referee, who heard the cause and reported his finding of facts and conclusions of law to the court.The parties designated as appellants in above caption filed exceptions to the report of the referee.The court overruled such exception and rendered judgment in accordance with the referee's report, thereby establishing various liens in the total sum of $19,202.94, and denying one alleged lien in the sum of $2,301.55.This appeal followed.

Respondents contend there is nothing before us for review except the record proper, because no exception was saved to the action of the court in overruling the exceptions to the referee's report.

The record does not support the contention made.

It appears from the record that on November 5, 1934, all exceptions to the referee's report were overruled, to which action exceptions were then and there duly saved.

Later, and on November 8, 1934, on application of counsel for all parties, and with the consent of the court, the order of November 5, 1934, overruling the exception to the referee's report, was set aside, and said exceptions resubmitted by consent.

Thereafter, on January 23, 1935, the court rendered and entered its final decree in said cause in which it is recited: "That each and all exceptions filed * * * to the said report of said referee, as amended, should be and the same are now by the court overruled."

Immediately following the entry of this decree the record shows that appellants duly saved exceptions to the action of the court in entering said decree.

Since the exceptions to the referee's report were overruled by the decree itself, exceptions to the rendition of that decree necessarily saved an exception to the action of the court in overruling the exception to the report.

Respondents' next contention is more serious.Point is made that there is nothing here for review except the record proper because the alleged error of the court in overruling the exceptions to the referee's report is not preserved in the motion for new trial.

This question has been before our courts on former occasions.Such a question was decided by this court in State ex rel. v. Woods, 234 Mo. 16, 25, 26, 136 S.W. 337, 339.We there said:

"We have gone thus far in outlining the law, to the end that we might discuss the serious point in this record.The bill of exceptions in this case preserves the exceptions and the ruling thereon.It shows that the defendants excepted to the ruling upon their exceptions.We also find a motion for new trial properly preserved, and an exception to the action of the court in its ruling thereon.The trouble, however, lies in the motion itself.This motion nowhere charges the court with error in overruling the exceptions to the report of the referee.It contains some eight grounds, but not one of them mentions the action of the court upon defendants' exceptions to the report of the referee.The nearest to such a question is the second ground, which reads: `Because the court erred in approving the report of the referee filed in said cause and rendering judgment in accordance with the report of said referee.'

"Nowhere is it charged in the motion that the court erred in overruling defendants' exceptions to the referee's report.What we have quoted from the motion for new trial, could as well have appeared in a motion for new trial where no exceptions had been filed as in a case where exceptions had been filed.Yet, if no exceptions had been filed, the motion would be unavailing.The question therefore...