Braun v. Graham
| Citation | 211 S.W.2d 494 |
| Decision Date | 18 May 1948 |
| Docket Number | 27403 |
| Parties | BRAUN v. GRAHAM et al |
| Court | Court of Appeal of Missouri (US) |
'Not to be reported in State Reports.'
Alexander & Robertson and John A. Eigel, all of St. Louis, Mo., for appellant.
William L. Berthold, Kerth & Schreiber, and Philip A. Foley, all of Clayton, and Oliver F. Erbs, of St. Louis, for respondents.
HUGHES
This purports to be an appeal by plaintiff seeking a mechanic's lien, and is from an order sustaining a motion to dismiss and dismissing the cause as to the defendants Graham, the owners of the property against which the lien was sought to be established and enforced.
The mechanic's lien as filed in the office of the clerk of the circuit court of St. Louis County on January 8, 1947 states that Henry B. Braun, Jr., with a view to avail himself of the benefit of the statute relating to mechanic's liens, files the account for materials furnished by him and for work and labor done under one contract with Alden B. Park to and for the building and improvements described. Then follows a description of the property, and the statement that the property, building and appurtenances and improvements belong to Roy Graham and Berniece Graham, his wife, subject to a deed of trust to Lyle M. Allen, trustee for May Department Stores, a corporation. The itemized account is then stated under the heading, 'Roy Graham and Berniece Graham, his wife, to Henry B. Braun, Jr., Dr.' The amount of the account is $ 728.34.
Thereafter on April 5, 1947, suit was instituted by the filing of plaintiff's petition, which contained the itemized account, which was headed, 'To Roy Graham and Berniece Graham, his wife, To Henry B. Braun, Jr., Dr.' The petition alleged that plaintiff had demanded payment of Roy Graham and Berniece Graham, his wife, and concluded with a prayer for judgment against Roy Graham and Berniece Graham, his wife, for $ 728.34, and for a lien against their property.
On May 22, 1947, plaintiff filed an amended petition, which differed from the original petition in that the account as stated was headed, 'To Alden B. Park, To Henry B. Braun, Jr., Dr.', and alleged the demand for payment had been made to Alden B. Park, Roy Graham and Berniece Graham, his wife, and concluded with a prayer for judgment against Alden B. Park for $ 728.34 and that the same be adjudged a lien against the property of Roy Graham and Berniece Graham, his wife.
On May 29, 1947, Alden B. Park, on oral motion, was granted 20 days' additional time in which to plead.
On June 6, 1947, Roy Graham and Berniece Graham filed a motion to dismiss the cause as to them, for the reasons, (1) that the original petition failed to state a claim upon which relief could be granted against them, both as to the account sued on and as to the mechanic's lien claimed, and that the amended petition was a departure from the original petition, and was filed more than 90 days after the filing of the mechanic's lien, and (2) that no money judgment could be obtained against them under the amended petition, and that the amended petition having been filed more than 90 days after the lien was filed, no lien against their property could be granted. The motion was heard on the same day, and defendants Graham offered in evidence to support the motion the mechanic's lien and the original petition and the dates of their filing. The motion was taken under advisement by the trial judge, and on July 15, 1947, was sustained. On July 22, 1947, plaintiff filed a motion for rehearing on order dismissing plaintiff's amended petition or in the alternative for a modification of order dismissing plaintiff's amended petition. On July 25, 1947, the court of its own motion amended its order of July 15th to show that the dismissal was as to the defendants Roy Graham and Berniece Graham, and as to plaintiff's mechanic's lien on the property in suit. On July 25, 1947, plaintiff refiled the motion for rehearing or modification, which was on that day overruled.
On August 2, 1947, p...
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