Bombeck v. DeVorss

• Decision Date: 26 October 1885
• Citation: 19 Mo.App. 38
• Parties: DANIEL F. BOMBECK, Appellant, v. WILLIAM DEVORSS ET AL., Respondents.
• Court: Missouri Court of Appeals

19 Mo.App. 38

DANIEL F. BOMBECK, Appellant,

v.WILLIAM DEVORSS ET AL., Respondents.

Kansas City Court of Appeals, Missouri.

Oct. 26, 1885.

APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.

Affirmed.

Statement of case by the court.

On the fourth day of March, 1876, a petition was filed with the clerk of the circuit court in the case of Daniel F. Bombeck v. William Devorss. As to that petition the record in this case shows only this. The petition itself is not in this record.

On the nineteenth day of January, 1877, Daniel F. Bombeck filed an amended petition, making William Devorss, Jefferson B. Baker and Eli Moore co-defendants. An order of publication was granted as to defendants Baker and Moore. The amended petition sought to enforce against the property of Devorss a mechanic's lien, for material furnished for and work done upon Devorss' building. It was alleged in the amended petition that Baker and Moore, as partners, were the contractors with Devorss for the erection of his building, and that plaintiff did the work and furnished the material, in suit, under a contract with Baker and Moore. It was also alleged in the amended petition that the plaintiff “on the fourteenth day of January, 1876, filed his said account and bill of items of his said demand. * * *”

The defendant, Devorss, for himself, moved “the court to strike out and exclude from the record herein the plaintiff's amended petition herein, and to dismiss this suit as to this defendant, for the following reasons, to-wit:

1. Because the record in this case shows that this action was originally brought by plaintiff, as such contractor on account for work and labor done and material furnished Baker and Moore, original contractors therefor, and against this defendant, William Devorss, for the purpose of foreclosing a mechanic's lien as against a certain building owned by this defendant, upon which it was claimed said alleged work and material was furnished in the year 1875, without making said original contractors, Baker and Moore, defendants therein.

2. Because said original petition shows upon its face that there was no cause of action against this defendant, and the amended petition herein was filed at the present term of court and undertakes to make said Baker and Moore co-defendants with this defendant without leave or order of court first had, and states an entirely different cause of action.

3. Because, even though said Baker and Moore can thus be properly made defendants herein without leave or order of court first had therefor, the record herein shows that no suit was instituted by plaintiff as against said defendants, Baker and Moore, on said account, or to foreclose said lien within the time required by law for so doing, and it is shown by the record herein that there is no cause of action existing in favor of plaintiff as against this defendant.

4. * * *

5. * * *

6. * * *”

The court sustained said motion and dismissed said cause as to defendant Devorss.

Upon the case coming on for trial the court refused to permit the plaintiff to introduce any evidence to sustain the allegations of the amended petition against defendants, Baker and Moore.

The plaintiff has appealed to this court.

E. O. HILL and ALLEN H. VORIES, for the appellant.

I. Under the statute suit was brought in less than ninety days after the lien was filed, and that is sufficient. Amended petition can be filed and new parties made, which was done in this case, and if Baker and Moore...