Chance v. Franke

• Decision Date: 10 November 1942
• Docket Number: 37987
• Citation: 165 S.W.2d 678,350 Mo. 162
• Parties: Lawrence Edward Chance and Erma M. Chance, Appellants, v. Myrtle Franke
• Court: Missouri Supreme Court

165 S.W.2d 678

350 Mo. 162

Lawrence Edward Chance and Erma M. Chance, Appellants, v. Myrtle Franke

No. 37987

Supreme Court of Missouri

November 10, 1942

Appeal from Circuit Court of St. Louis County; Hon. John J Wolfe, Judge.

Affirmed.

Orla M. Hill and Jesse L. England for appellants.

(1) As to defendant's title based upon a purported mechanic's lien: A mechanic's lien suit is inter parties and not in rem. Macklind Inv. Co. v. Ferry, 108 S.W.2d 21. Jurisdiction in mechanic's lien suits is special and is conferred only when the essential requirements of the statute affirmatively appear on the face of the pleadings. Independent Plumbing & Heating Co. v Glennon, 287 S.W. 824. (a) The statute requires that the plaintiff in the mechanic's lien suit file a statement of facts and a description of the property. The description must be so nearly true as to enable the premises to be identified with certainty. Unless the above requirements were complied with the court acquired no jurisdiction and the judgment and decree entered was absolutely void and the sale thereunder was likewise void. Sec. 3551, R. S. 1939; Independent Plumbing & Heating Co. v. Glennon, 287 S.W. 824; Cole v. Parker-Washington Co., 207 S.W. 749; Schwarz Materials Co. v. West End Realty Co., 154 S.W.2d 366. The mechanic's lien statute sets forth the conditions precedent to the plaintiff's right to maintain the action and if those conditions were not complied with the court was without jurisdiction to enter judgment and the judgment so entered was void and likewise the sale thereunder was void. Gill v. Harris, 24 S.W.2d 673; Lauders Lbr. Co. v. Short, 37 S.W.2d 981. (b) Where the plaintiff's petition in the mechanic's lien suit did not describe the real estate with sufficient definiteness to enable identification thereof, but did in fact refer to the south part of a parcel of land, the court did not acquire jurisdiction over an undefined portion of the north part of said parcel of land, and the judgment and decree entered establishing liens against the north portion of said parcel of land was forever void and the sale thereunder was likewise void. Independent Plumbing & Heating Co. v. Glennon, 287 S.W. 824; Cole v. Parker-Washington Co., 207 S.W. 749; Schwarz Materials Co. v. West End Realty Co., 154 S.W.2d 366; Gill v. Harris, 24 S.W.2d 673; Lauders Lbr. Co. v. Short, 37 S.W.2d 981. (c) When a corporation defendant, forfeits its charter before hearing and judgment and the petition is not amended to join as parties the successors or legal representatives, the court is without jurisdiction to enter judgment for or against such corporation. Sec. 3571, R. S. 1939; Macklind Inv. Co. v Ferry, 108 S.W.2d 21; Cole v. Parker-Washington, 207 S.W. 749. (d) The court and other parties having notice that named parties within the court's jurisdiction claimed an interest in the real estate involved, the court was without jurisdiction to enter judgment without joining such parties in the action and causing them to be served with process. Sec. 3551, R. S. 1939. (e) In the mechanic's lien suit the court was without jurisdiction to enter judgment without determining and adjudicating the controversy and interests as to all defendants. Sec. 3570, R. S. 1939; McPherrin v. Lumbermen's Supply Co., 242 S.W. 136. (2) It was error for the court to refuse the plaintiffs permission to amend their petition during trial to conform to offer of proof of a material fact. Sec. 3571, R. S. 1939. (3) The plaintiffs having proven a complete chain of title, well vested in them and the defendant having failed to establish any valid interest in the real estate, it was error for the court to enter judgment in favor of the defendant and against the plaintiffs. Sec. 1684, R. S. 1939. (4) When the defendant failed to prove that third parties had any interest in the real estate, it was error for the court to fail to find that said third parties had no interest. Sec. 3570, R. S. 1939; McPherrin v. Lumbermen's Supply Co., 242 S.W. 136. (5) It was error for the court to permit defendant to maintain a defense to the action and to find in her favor when the evidence shows that the defendant has no interest and acted only as a straw party and is not the real party in interest. Sec. 849, R. S. 1939.

W. Donald Dubail, Walter Lambert and Oliver F. Erbs for respondent.

(1) The judgment of the lower court dismissing the appellants' petition was correct for the reason that the appellants failed to establish any title to the property in suit in themselves. R. S. 1939, sec. 1684; Cullen v. Johnson, 325 Mo. 253, 29 S.W.2d 39; Orchard v. Mo. Lbr. & Min. Co., 184 S.W. 1138. (a) All parties disclosed by proper public records to have had any interest in the property were made parties defendant in the equitable mechanic's lien suit and the judgment and decree therein adjudicated the interest of all parties claiming any interest in said property, including the appellants. R. S. 1939, sec. 3571; Dezino v. Drozda Realty Co., 13 S.W.2d 659; Macklind Inv. Co. v. Ferry, 341 Mo. 493, 108 S.W.2d 21; Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274. (b) Appellant Lawrence Edward Chance was a party to the equitable mechanic's lien suit and participated by counsel therein and is bound by the judgment and decree entered in that cause. See statute and cases cited, supra. State ex rel. v. Barr, 143 Mo. 209, 44 S.W. 1045. (2) The judgment and decree in the equitable mechanic's lien suit is not subject to collateral attack. Lillibridge v. Ross, 59 Mo. 217; Spring v. Giefing, 315 Mo. 525, 289 S.W. 825; Harter v. Petty, 266 Mo. 296, 181 S.W. 39; Sullinger v. West, 211 S.W. 65; Sidwell v. Kaster, 289 Mo. 174, 232 S.W. 1005; Rossi v. Davis, 345 Mo. 362, 133 S.W.2d 363; Seibel v. Siemon, 5 Mo.App. 303; Boillot v. Income Guaranty Co., 124 S.W.2d 608. (3) All unknown owners having been made parties defendant and duly notified by publication in the equitable mechanic's lien suit, appellants were thereby parties to said suit and are bound by the judgment and decree therein. Macklind Inv. Co. v. Ferry, 341 Mo. 493, 108 S.W.2d 21. (4) The mechanic's lien statute should be liberally construed to accomplish the purposes of law and to preserve the lien claims. R. S. 1939, sec. 3546; Chance v. Franke, 153 S.W.2d 378. (5) The amendment sought to be made by appellants during trial constituted a collateral attack on the judgment and decree in the equitable mechanic's lien suit and was properly denied. Lillibridge v. Ross, supra. (6) Appellants sought no relief as to Willard S. and Ida Layne and did not make them parties to the suit. The point that the court erred in failing to find that the Laynes had no right, title, or interest in the property is made now for the first time and comes too late. Lillibridge v. Ross, supra; Boillot v. Income Guaranty Co., supra. (7) Respondent, the record owner of the property in question, is the real party in interest. Appellants having elected to sue her as such cannot now for the first time claim otherwise. Mutual Press Brick & Quarry Co. v. Tomaselli, 154 S.W.2d 370. Exhibits not used at trial will be excluded. Weisberg v. Boatmen's Bank, 280 Mo. 199, 217 S.W. 85; Ransom v. Potomac Ins. Co., 226 Mo.App. 664, 45 S.W.2d 95.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action in equity to cancel a sheriff's deed and the mechanic's lien judgment on which it is based; and also to determine title to the land involved and for injunctive relief. The court found for defendant and entered judgment of dismissal. Plaintiffs have appealed.

The common source of title is Alice Mischlispy. Defendant claims under the sheriff's sale and deed, based on the judgment in a mechanic's lien suit in which Alice Mischlispy's grantees, Albert and Mary Hauser, were made defendants. The mechanic's lien suit was commenced in October, 1930, and was an equitable action under Section 3570, R. S. 1939. Plaintiffs claim under a deed from Hauser, made to plaintiff L. E. Chance in June, 1932, and a deed from Alex Halbman and wife (to whom Hauser, as a widower, conveyed in November, 1930), made to L. E. Chance in January, 1932. (Plaintiff Erma M. Chance was not a grantee in either deed.) Plaintiffs did not record these deeds until July 13, 1939. The final decree in the mechanic's lien suit was entered during the September, 1938 term, and the sale thereunder was held on July 10, 1939. However, in April, 1930, Albert and Mary Hauser had conveyed the property to Willard S. and Ida M. Layne. Halbman and the Laynes were also parties to the mechanic's lien suit.

Plaintiffs' claim is that the judgment in the mechanic's lien suit was absolutely void because neither the lien statement nor the petition therein described the land covered by the decree and conveyed by the sheriff's deed; and also because plaintiffs were never made parties or served with summons or given notice and did not enter their appearance. Plaintiffs' petition was before this court in Chance v. Franke, 348 Mo. 402, 153 S.W.2d 378, to which reference is made for further information as to its allegations. That was an appeal from a judgment dismissing plaintiffs' petition in this case. This court said (on that appeal) that "plaintiffs' petition charged that a void judgment was in existence"; that "no issue involving the sufficiency of plaintiffs' petition was presented nisi or here"; and that the trial court erred in dismissing the petition on the ground that the mechanic's lien suit was res adjudicata of plaintiffs' title claims when this matter did not appear from plaintiffs' petition but "by the proof dehors the record proper." This court ruled (on that appeal) that "the plea of res adjudicata has been held a defense to be affirmatively pleaded"; and that p...