Braeckel v. Shade

• Decision Date: 03 May 1909
• Citation: 137 Mo. App. 20,118 S.W. 1196
• Parties: BRAECKEL et al. v. SHADE et al.
• Court: Missouri Court of Appeals

118 S.W. 1196

137 Mo. App. 20

BRAECKEL et al. v. SHADE et al.

Kansas City Court of Appeals. Missouri.

May 3, 1909.

Rehearing Denied May 17, 1909.

1. MECHANICS' LIENS (§ 5) — STATUTES — CONSTRUCTION.

The rule calling for a strict construction of statutes in derogation of the common law does not apply to mechanic's lien statutes. Such statutes, being remedial in nature, should receive a liberal construction.

2. MECHANICS' LIENS (§ 124) — NOTICE TO OWNER—MISTAKE IN NAME.

Rev. St. 1899, § 4207 (Ann. St. 1906, p. 2290), requires the statement of a mechanic's lien to contain the name of the owner if known. Section 4221 (page 2311) requires the claimant to serve notice of his purpose to file a lien on the owner or agent of the property. Held, that a lien is not lost by a mistake, through misinformation by an abstract clerk, in the first name of the owner in the notice of lien, where the owner was not misled by the error, and no rights of third persons had intervened.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Frank H. Braeckel and another against D. E. Shade and another. From a judgment for defendants, plaintiffs appeal. Reversed.

H. S. Miller, for appellants. J. H. Spurgeon, for respondents.

JOHNSON, J.

Plaintiffs, who are partners doing business in the name of the Joplin Sash & Door Works, brought this suit before a justice of the peace to enforce a mechanic's lien for materials furnished under contract with defendant Shade (the contractor) for a building erected on premises owned by defendant James. Shade, though duly served with summons, failed to appear in the circuit court, where the cause was taken by appeal, and personal judgment was rendered against him for the amount of plaintiff's demand. James appeared and contested the lien. A jury was waived, and judgment was entered in favor of James. Plaintiffs appealed.

The last item of the account is for material furnished October 1, 1907. The notice that plaintiffs intended to file a lien was served on defendant James January 15, 1908. The lien paper was filed with the circuit clerk January 27, 1908. Notice that suit would be brought in the justice's court was filed February 6, 1908, and on the following day the action was begun, as stated in the notice. In these notices and in the lien statement, the name of the owner of the premises was given as James D. James; but the notices and the summons were served on defendant whose name is John D. James. The mistake was discovered by plaintiffs after the suit was brought, and they were given leave by the justice to amend the petition and statement "by changing the name of the defendant James D. James to John D. James; John D. James having been personally served with summons." It appears from the evidence of plaintiffs that they did not know who was the owner of the premises. The lawyer employed by them inquired at the office of an abstractor and was informed by the person in charge of the office that the books showed the owner of the premises to be James D. James. The lawyer acted on this information in preparing the notices, lien statement, and petition. The fact that plaintiffs and their attorney acted in good faith is not disputed and is established by evidence. The question of the effect of the mistake is the only issue considered by the trial court and argued here.

The rule that calls for a strict construction of statutes in derogation of the common law is not applicable to the mechanic's lien statutes. "The better doctrine now is that these statutes are highly remedial in their nature and should receive a liberal construction to advance the just and beneficient objects had in view in their passage." De Witt v. Smith, 63 Mo. 263; Hicks v. Scofield, 121 Mo. 381, 25 S. W. 755; Sawyer v. Clark, 172 Mo., loc. cit. 598, 73 S. W. 137. Section 4207, Rev. St. 1899 (Ann. St. 1906, p. 2290), requires the lien statement to contain "the name of the owner or contractor...