Central Wholesale Distributors, A Div. of Topeka Lumber, Inc. v. Day

• Decision Date: 01 May 1984
• Docket Number: No. WD,WD
• Citation: Central Wholesale Distributors, A Div. of Topeka Lumber, Inc. v. Day, 672 S.W.2d 88 (Mo. App. 1984)
• Parties: CENTRAL WHOLESALE DISTRIBUTORS, A DIVISION OF TOPEKA LUMBER, INC., Appellant, v. James DAY, d/b/a Rainbow Roofing, et al., Respondents. 34820.
• Court: Missouri Court of Appeals

Page 88

672 S.W.2d 88

CENTRAL WHOLESALE DISTRIBUTORS, A DIVISION OF TOPEKA LUMBER INC., Appellant, v.James DAY, d/b/a Rainbow Roofing, et al., Respondents.

No. WD 34820.

Missouri Court of Appeals Western District.

May 1, 1984.

Peter M. Somerville, Rockport, and Wendell F. Cowan, Jr. and Gary M. Korte, Topeka, Kan., for appellant.

R. Dan Boulware and Michael L. Taylor, St. Joseph, for defendants, Bethesda Foundation, Tarkio Dev. Co., First Federal Sav. & Loan Assoc. of St. Joseph.

Thomas D. Watkins, St. Joseph, trustee for First Fed. Sav. & Loan.

Before PRITCHARD, P.J., and MANFORD and NUGENT, JJ.

MANFORD, Judge.

This is a civil action seeking judgment on a mechanic's lien.The circuit court entered a judgment of dismissal for noncompliance with Chapter 429, RSMo 1978 upon failure to join a necessary party.The judgment is affirmed.

Three points are presented which charge that the trial court erred in dismissing appellant's claim, because (1)the trial court had jurisdiction over the necessary party(the general contractor), (2)respondents waived their affirmative defense of lack of jurisdiction and are estopped from claiming a lack of jurisdiction, and (3) the purpose of § 429.190, RSMo 1978 had been fully served.

This court has been provided a brief transcript and supporting documents which, in combination, reveal the following pertinent facts.One James Day, d/b/a Rainbow Roofing, contracted to roof the Bethesda Nursing Home in Tarkio, Missouri.Day purchased the roofing materials from Central Wholesale Distributors (plaintiff-appellant and hereinafter referred to as Central) in May, 1981.Day failed to pay Central, and on July 29, 1981, Day filed a Chapter 7 proceeding in the United States Bankruptcy Court, District of Kansas.Because of Day's default, on August 17, 1981, Central filed a notice of a materialmen's lien upon defendants Bethesda Foundation and Tarkio Development Company.On September 8, 1981, Central filed a lien statement.

The result of Day's bankruptcy caused a stay of the lien proceedings as to him.Central then filed in the bankruptcy proceedings a "Complaint to Modify Stay" and a "Stipulation To Modify Stay."Day was a party to these proceedings, and in the stipulation consented to jurisdiction of the Atchison County Circuit Court for purposes of the lien proceedings.This stipulation was not filed in the circuit court at the outset of the lien proceedings, although the bankruptcy court approved both the stay modification and the stipulation.The claimed purpose of both the modification and the stipulation was to satisfy § 429.190, RSMo 1978, which mandates the naming of all parties to the basic contract in a lien proceeding.

On December 28, 1981, Central filed a petition for foreclosure on its lien, naming Day, Tarkio, Bethesda and the original lienholder, First Federal Savings and Loan Association of St. Joseph.All of the defendants, except Day, were personally served with process and all defendants, except Day, timely filed their answers.September 28, 1981 was the date service of process issued, and on that date, the circuit clerk, for some unexplained reason and without request or direction by Central, issued service on Day by registered mail at Day's residence in Hutchison (Reno County) Kansas.This "registered mail service" contained only a copy of Central's petition and no summons.Day never claimed the registered mail and it was returned by postal authorities as unclaimed.

From the record before this court, it can be fairly concluded that neither Central nor its counsel was, at that time, aware of the circuit clerk's actions.Between December 31, 1982 and February 24, 1983, pretrial discovery occurred, which included the taking of Day's deposition.The parties filed opposing motions for summary judgment.Defendants also filed a motion to dismiss, and on March 30, 1983, the trial court sustained the motion to dismiss filed by defendants Tarkio, Bethesda, and First Federal on the basis that Day was a necessary and indispensable party and the court lacked jurisdiction over Day.This appeal followed.

Under its point (1), Central charges that the trial court erred in dismissing its claim because the court, in fact, had jurisdiction over Day.

In support of its contention, Central points out that Day agreed to Central's "Complaint To Modify Stay" and agreed to the "Stipulation To Modify Stay" filed in the bankruptcy proceedings.These actions by Day are verified within Day's affidavit filed in the instant proceeding as of March 18, 1983.This March 18, 1983 date was, of course, long after the lapse of the six-month applicable time period prescribed by Chapter 429.

While Central argues that the affidavit by Day was sufficient to confer jurisdiction, Central also argues that further action by Day also conferred jurisdiction.This further action was the acknowledgment by Day of the lien proceedings and the giving of his deposition in furtherance of the lien proceedings.Central thus concludes that the court acquired jurisdiction over Day by Day's consent and voluntary submission to the court's jurisdiction.

Central urges this court to follow and apply the general rule announced in Bennett v. Shaul, 318 S.W.2d 307(Mo.1958), an action for rent and possession of real property, which stated at 309, citing from21 C.J.S. Courts 85c, p. 133:

" 'It is well established, as a general rule, that where the Court has jurisdiction of the subject matter or cause of action, jurisdiction over the persons of the parties may be conferred by consent or where defendant has voluntarily submitted to the jurisdiction of the court.Accordingly, express or implied consent of the parties to the jurisdiction of the court may operate to cure defects of jurisdiction arising from irregularities in the commencement of the proceedings, defective process, or even the absence of process.' "

Central also supports its argument by citing to State v. Weinstein, 411 S.W.2d 267(Mo.App.1967), which quoted the following from State ex rel. Compagnie Generale Transatlantique v. Faulkenhainer, 309 Mo. 224, 274 S.W. 758, 761(1925):

" 'Broadly stated, any action on the part of a defendant, except to object to the jurisdiction over his person which recognizes the case as in court, will constitute a general appearance.' "

Additionally, Central refers this court to Hoagland Wagon Co. v. London Guarantee and Accident Co., 201 Mo.App. 490, 212 S.W. 393(1919).Central concludes that since the matter of jurisdiction over Day was a personal matter, the remaining defendants had no standing to challenge the absence of service over Day.

No valid objection can be raised to the correctness of the general rules announced in the foregoing authority cited by Central.The problem lies in the fact that authority finds no application herein because of the nature of the instant proceedings.Central instituted recovery under and pursuant to Chapter 429, the Missouri Mechanics' and Materialmen's Lien Law.Thus, Chapter 429 is not only applicable, but controlling.

Section 429.190, RSMo 1978 provides the following:

"429.190.Who may be made parties

In all suits under sections 429.010 to 429.340the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may be made parties, but such as are not made parties shall not be bound by any such proceedings."

Section 429.190, by its very wording, mandates that all parties to the contract giving rise to the lien claim shall be parties to the action for a lien under § 429.010-429.340, RSMo 1978.It is clear from the record herein, and it stands undisputed, that James Day was the general contractor for the roofing of the Bethesda Nursing Home.Day was a party to the contract upon which Central now seeks to enforce its lien claim.By virtue of § 429.190, Day was a necessary party to the lien proceeding and had to be joined in the lien proceeding.That all parties to the original contract are necessary parties, seeStructo Corp. v. Leverage Investment Enterprises Ltd., 613 S.W.2d 197(Mo.App.1981)andRackers & Baclesse v. Kinstler, 497 S.W.2d 549(Mo.App.1973).

The record herein is quite clear that Day was never served with any process of service within the six-month time limitation prescribed by Chapter 429.Day, as the record shows, was properly served some fourteen months after these proceedings commenced.Thus, the only issue is whether Day's stipulation within the bankruptcy proceedings, his acknowledgment of the lien proceedings, and his giving of his deposition sufficed to bring Day within the jurisdiction of the Atchison County Circuit Court within the requirements of Chapter 429.

Respondents rely upon the case of Continental Electric Co. v. Ebco, Inc., 375 S.W.2d 134(Mo.1964), contending that case to be completely dispositive of the question.In Continental, recovery was sought against Ebco, as a subcontractor, for materials furnished by Continental to Ebco on a building project for the Ford Motor Company.Ebco defaulted.At trial, the jury found for Continental on its lien claim against Ford.The trial court sustained Ford's motion for a verdict in accordance with its previous motion for a directed verdict, or alternatively, in the event such judgment was not upheld that Ford's alternative motion for new trial was to be considered sustained.The Court of Appeals reversed the trial court's ruling and ordered judgment in accordance with the jury's verdict be entered.The case was transferred to the Missouri Supreme Court, which in turn reversed the Court of Appeals.

The Missouri Supreme Court noted that the lien statement had been filed on December 23, 1959 and an action against Ebco and Ford was commenced on February 5, 1960, both such actions being well within the six-month limitation period prescribed by § 429.170, RSMo 1959(now 1978).Summons issued against both defendants on the same day...