Bassett v. Mills

• Decision Date: 03 February 1896
• Citation: 34 S.W. 93
• Parties: BASSETT v. MILLS et al.
• Court: Texas Supreme Court

34 S.W. 93

BASSETT v. MILLS et al.

Supreme Court of Texas.

February 3, 1896.

Error from court of civil appeals of Fourth supreme judicial district.

An action by O. T. Bassett against Anson Mills, Charles Fruin, and others, to enforce a mechanic's lien, was consolidated with other separate actions between the several defendants and others. From a judgment of the court of civil appeals (30 S. W. 558) reversing the judgment of the lower court, Bassett brings error. Reversed.

Millard Patterson, Davis, Beall & Kemp, and W. B. Brack, for plaintiff in error. M. W. Stanton, W. W. Turney, T. A. Falvey, and Waters Davis, for defendants in error.

GAINES, C. J.

This litigation was begun by the institution of a suit brought by Charles Fruin against Anson Mills, J. F. Crosby, and Josephine Crosby, and against George Paul, to recover a balance alleged to be due from Paul under a subcontract to furnish the material and to do the carpenter work upon a certain addition to a building belonging to the other defendants, and to enforce a lien for its payment upon the building and the lots upon which it stood. In a short time thereafter, five other persons and firms each brought a similar suit against the same defendants. O. T. Bassett, the plaintiff in error, also brought a suit against Charles Fruin for material furnished, and, having made the owners of the property parties defendant, sought to enforce a lien against it. That suit was brought December 31, 1889. On the same day, Paul, the original contractor, also brought suit against Mills and Crosby and wife, the owners of the property, alleging a balance due him for labor performed and material furnished by virtue of contracts with the defendants for the erection of two additions to the building, and seeking the foreclosure of a lien upon the improvements and lots for its payment. On a motion filed in the last-named case by the defendants Mills, Crosby, and Mrs. Crosby all those suits were consolidated. The consolidation was acquiesced in by all parties. The defendants last above named thereupon took leave to amend, and filed a general answer in the consolidated case. The cases were tried as one, but the court gave a separate charge, and the jury returned a separate verdict, in each original case. A general charge was also given, which was applicable in part to each of the original suits. Judgments were entered separately also in each case, except in one or two, where, by reason of some oversight, no final judgment was entered. In four of the original cases judgments were rendered against Mills, Crosby, and wife as to the liens claimed. They sought to appeal from these judgments, but their appeal was dismissed, upon the ground that a final judgment had not been rendered as to all the parties. 1 Tex. Civ. App. 419, 23 S. W. 189. A writ of error was also sued out, and it was dismissed on the same ground. 4 Tex. Civ. App. 504, 23 S. W. 395, 396. The defendants Mills and Crosby and wife then instituted proceedings in the trial court, and caused judgment to be entered nunc pro tunc as to the parties for or against whom no judgment had been entered, and from the judgments as perfected prosecuted this appeal.

The appellees again moved to dismiss, but the motion was overruled. In disposing of the appeal upon its merits the court of civil appeals reversed the judgment and remanded the cause as to Paul; affirmed it as to Cameron & Co. and T. M. Cooney & Co.; and as to Bassett affirmed the judgment against Fruin, the subcontractor, but as to the owners of the property reformed it so as to give Bassett a lien only upon the improvements. Bassett has applied for and obtained this writ of error upon a petition assigning substantially two grounds: (1) That the court of civil appeals erred in not sustaining the motion to dismiss the appeal; and (2) that it also erred in decreeing that he had no lien upon the real estate for the payment of his demand against Fruin. This meager statement of a very complicated proceeding is sufficient for the purposes of this opinion. We find no error in the action of the court in refusing to dismiss the appeal. The opinion of the chief justice of that court, in disposing of that question, presents an elaborate and satisfactory discussion of the points involved, and it would serve no useful purpose to add anything to what has there been said. But we do not concur with that court in holding that Bassett has no lien upon the lots. The question is one of great difficulty. The statute, which purports to fix and to provide for the enforcement of mechanics', laborers', and material men's liens, and which was approved April 5, 1889, went into effect 90 days after April 6, 1889, the day of the adjournment of the legislature. The lumber for which Bassett sued was furnished to Fruin, a subcontractor under Paul's second contract, which was entered into July 25, 1889; so that the statute referred to is applicable to the case. Section 1 of that act reads as follows: "Any person or firm, lumber dealers, artisan, laborer, mechanic or subcontractor, who may labor or furnish material, machinery, fixtures or tools to erect any house or improvement, or to repair any building or improvement whatever, under or by virtue of contract with the owner or his agent, trustee, contractor or contractors, upon complying with the provisions of this act, shall have a lien on such house, building, fixtures or improvements, and shall...