Bethune v. Cleveland, St. L. & K. C. Ry. Co.

• Decision Date: 23 May 1899
• Citation: 51 S.W. 465,149 Mo. 587
• Parties: BETHUNE et al. v. CLEVELAND, ST. L. & K. C. RY. CO. et al.
• Court: Missouri Supreme Court

51 S.W. 465

149 Mo. 587

BETHUNE et al. v. CLEVELAND, ST. L. & K. C. RY. CO. et al.

Supreme Court of Missouri, Division No. 1.

May 23, 1899.

REVIEW — WRIT OF ERROR — RAILROADS — STATUTORY LIEN FOR LABOR — EXTENT — ENFORCEMENT — JUDGMENT — EXECUTION.

1. Where there was no exception on the trial, no motion for a new trial or in arrest of judgment, and no exception to overruling a motion to recall an execution and appoint a receiver, none of these proceedings can be reviewed on a writ of error sued out over three years afterwards.

2. The lien for labor and material expended in constructing a railroad, conferred by Rev. St. 1889, c. 102, art. 4, on "the road bed, station houses, depots, bridges, rolling stock, real estate and in improvements of such railroad," covers the company's railroad within the state, whatever the stage of its construction, the length of its route, or the number of counties through which it is located, and includes its right of way.

3. Rev. St. 1889, c. 102, art. 4, provides that, in the action to enforce the lien on a railroad conferred by it for labor done thereon, no personal judgment shall be rendered except as against such defendants as might be sued thereon in an ordinary action at law; and hence it was proper not to render personal judgment against the railroad company in an action by a subcontractor to enforce such a lien.

4. A description in the judgment in an action to enforce a lien on a railroad for labor done thereon, which complies with the requirement of Rev. St. 1889, c. 102, art. 4, that the particular property to which the lien is to apply shall be described by the name of the railroad, is sufficient.

5. That no provision is made for a lien on the franchise of a railroad company for labor done on its road and for its enforcement affords no ground for a refusal to enforce the lien against its tangible property on which, by Rev. St. 1889, c. 102, art. 4, such a lien is imposed, and provision made for its enforcement.

6. The requirement of Rev. St. 1889, c. 102, art. 4, that, under the special fi. fa. authorized thereby to satisfy a lien against a railroad for labor, "the writ shall be returnable as in ordinary executions, and the advertisement, sale and conveyance of real estate under the same shall be made as under ordinary executions," does not preclude the sale of a railroad as a whole on which a lien exists, because it is not within the limits of a single county, since the method thus adopted is not adopted beyond the purpose of the fi. fa. to satisfy the lien from a sale of the road as a whole.

Error to circuit court, St. Charles county; W. W. Edwards, Judge.

Action by James H. Bethune and others against the Cleveland, St. Louis & Kansas City Railway Company and others to enforce a subcontractor's lien. A lien was established, and property sold under an execution issued to satisfy the same. A motion to recall the execution and appoint a receiver and a motion to set aside the sale and to quash the execution, levy and return, and to grant a rehearing were overruled, and defendant the Farmers' Loan & Trust Company of New York brings error. Affirmed.

John H. Overall and Hough & Hough, for plaintiff in error. H. J. Cantwell and Geo. P. B. Jackson, for defendants in error.

BRACE, P. J.

This case was brought here by writ of error sued out by the Farmers' Loan & Trust Company of New York, one of the defendants, on the 29th day of August, 1893, whose counsel state the case as follows: "The defendant the Cleveland, St. Louis & Kansas City Railway Company was incorporated, under the laws of the state of Missouri, on March 26, 1888, for the purpose of building a railroad from a point on the bank of the Mississippi river in St. Charles county, opposite the city of Alton, in the state of Illinois, through the counties of St. Charles and St. Louis to the city of St. Louis, and of securing such lines of railroad as would constitute a line over which it might do business through the various counties of Missouri, between its terminus in St. Charles county to the city of Kansas City, in Jackson county, Missouri. On June 1, 1887, the Central Missouri Railroad Company, a corporation organized under the laws of Missouri for the purpose of constructing a railroad from a point opposite the city of Alton, in the state of Illinois, through various counties in the state of Missouri, to the city of Kansas City, in Jackson county, Missouri, conveyed all its property and franchises then owned or thereafter to be acquired to the Farmers' Loan & Trust Company, to secure its eight hundred thousand dollars of bonds. On March 28, 1888, the Cleveland, St. Louis & Kansas City Railway Company purchased of the Central Missouri Railway Company all that portion of the railway of the last-named company, constructed and to be constructed, beginning at Kansas City and running eastwardly through various counties in the state of Missouri to the city of Alton, Illinois, together with all the real estate and other property of the Central Missouri, consisting or connected with any part of said portion of its railroad in the various counties of Missouri through which the route of its railroad ran. Of the bonds secured by the deed of trust of the Central Missouri Railway Company to the Farmers' Loan & Trust Company only two hundred and fifty were ever issued. On July 30, 1889, plaintiffs brought suit in St. Charles county against the defendant the Cleveland, St. Louis & Kansas City Railway Company for work and labor performed and materials furnished in construction of part of the defendant's railroad in St. Charles county, under a contract with William Baird & Co., original contractors, and sought to establish a paramount lien therefor against the roadbed, bridges, culverts, station houses, depots, real estate, rolling stock, and improvements of the company from a point on the Mississippi river opposite Alton to Kansas City, under article 4, c. 47, Rev. St. 1879, now article 4, c. 102, Rev. St. 1889. The Farmers' Loan & Trust Company, mortgagee of the Cleveland, St. Louis & Kansas City Railway Company, the Central Trust Company, junior mortgagee of the defendant railroad, and the Holland Trust Company, mortgagee of its bridges, were made defendants; but the original contractors were not made parties. It is alleged in plaintiffs' petition that that part of the railroad between the city of St. Charles and the town of Hamburg, both in St. Charles county, a distance of about twenty miles, is completed, and trains running thereon; that the railroad is graded east from St. Charles to a point on the west bank of the Mississippi river opposite Alton; that the railroad is graded from Hamburg to a point in Warren county about thirty miles west of Hamburg; that the projected line extends and is intended to be constructed through Warren and the various counties west thereof to Kansas City; that the company is the owner of a projected railroad from the point opposite Alton to the city of St. Louis; and that the said company is the owner of real estate and improvements in said counties through which said projected lines are to run. On March 22, 1890, upon a trial of the cause, a jury being waived, the court assessed damages in behalf of plaintiffs for the sum of eighty-eight thousand five hundred thirty-five and 76/100 dollars, and further found the same to be a first and paramount lien upon the property mentioned in the petition, and ordered, adjudged, and decreed that the plaintiffs' lien therefor be enforced, and that the damages aforesaid, together with the costs of suit, be levied out of the property mentioned in the petition, and on March 28, 1890, execution was issued upon said judgment, directing the sheriff of St. Charles county to seize, levy upon, and expose to sale at the court-house door in St. Charles, Missouri, during the session of the circuit court of St. Charles county, Missouri, on Saturday, May 10, 1890, the roadbed, depots, bridges, station houses, rolling stock, real estate, and improvements of the defendant railway company within the state of Missouri, including that acquired from the Central Missouri Railway Company, and to have the same before said court on the first Monday of September, 1890, to render to said plaintiffs their damages, interest, and costs, and certify how said writ was executed. On May 8, 1890, this defendant and others filed their application and motion as creditors of the defendant railway company to recall the execution, and for the appointment of a receiver. This application and motion was on May 10, 1890, denied and overruled by the court. The return of the sheriff shows that he levied upon the property described in the execution, and sold the same at the court-house door in the city of St. Charles, Missouri, during the session of the circuit court of St. Charles county, to James H. Bethune for $142,700. On the day of the return, the defendant the Farmers' Loan & Trust Company filed its motion amended September 6, 1890, to set aside the sale, and to quash the execution, the levy thereunder, and the return thereof, on the grounds that the real estate and other property seized under the execution lies in the counties of St. Charles, St. Louis, Warren, Montgomery, Callaway, Boone, Howard, Cooper, Saline, Lafayette, Johnson, and Jackson, and that the sheriff of St. Charles county has no warrant or authority in law to sell real estate and other property lying, situate, and being in other counties of the state of Missouri than the county of St. Charles, nor had the authority or warrant of law to levy upon the same. This motion the court overruled, and the motion of defendant the Farmers' Loan & Trust Company to set aside the judgment and order of the court overruling the motion to set aside the sale and quash the levy and return, and to grant this defendant a rehearing, having been overruled, this defendant brought the case here by writ of error."

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