Coates v. Acheson
| Decision Date | 08 November 1886 |
| Citation | 23 Mo.App. 255 |
| Parties | KERSEY COATES, Respondent, v. J. C. ACHESON ET AL., Appellants. |
| Court | Missouri Court of Appeals |
APPEAL from Jackson Circuit Court, HON. F. M. BLACK, Judge.
Reversed and petition dismissed.
Statement of case by the court.
The plaintiff kept a hotel in Kansas City.
The defendant, Acheson, boarded there with his family under a special contract with the plaintiff from March 1, 1883, to November 15, 1883, at which last date the defendant owed on account the sum of $368.75.
The contract was not made for any definite time, but it contemplated a long period of time and was for a certain sum per month, fixed with reference to the contemplated period of time.
The defendants, William Stevens and Henry Sleek, had each a mortgage on the effects of Acheson which were in the hotel on March 1, 1883, and also at the time of the execution of the mortgages. Acheson left the hotel on November 15, 1883, leaving his effects therein. The mortgagees made claim to said effects under their mortgages to the plaintiff.
The plaintiff denied the claims thus made, and brought this action setting up the foregoing facts, claiming a lien upon the goods mentioned for the unpaid balance paramount to the mortgages, praying for a decree establishing the relative priority of the mortgages, and for an injunction restraining the mortgagees from attempting to take possession under either of said mortgages, and for the appointment of a receiver pendente lite and other proper relief.
Upon a trial the court rendred a decree establishing the plaintiff's lien for the amunt of the balance claimed by him as paramount to both mortgages and ordering its enforcement against the property. The case is here on appeal by the defendants, mortgagees, only.
BOTSFORD & WILLAMS, for appellant, STEVENS.
I. The statute limits the lien to charges for boarding actually due, and does not include charges for board to become due for board and lodging to be furnished in the future. Sect. 3198, Rev. Stat. This lien is created only by statute. It did not exist at common law. Hursh v. Byers, 29 Mo. 469; Shafer v. Guest, 6 Robt. (N. Y.) 264; s. c., 35 How. Pr. (N. Y.) 184.
II. The rights of the mortgagee became vested on the acknowledgment, delivery and record of his mortgage, and cannot be divested or impaired by charges on the property covered by the mortgage, created after such execution and record. Sergeant v. Usher, 53 New Hamp. 287. The record of the mortgage operated to give notice of the rights of the mortgagee thereunder; and was the equivalent of an actual and continued change of possession; and plaintiff was bound by it the same as if he had actual notice thereof. Sect. 2503, Rev. Stat., State ex rel., etc., v. Cooper, 79 Mo. 464; Berson v. Nunan, 63 California, 550. Appellant is not bound by charges on the property created thereafter by the voluntary action of plaintiff, without notice to appellant of any claim on the property for future charges. Brickin v. Croissiant, 3 Phila. (Pa.) 219.
III. The court below had no jurisdiction of said suit. The statute granting the lien to plaintiff as a boarding house keeper (sect. 3198, Rev. Stat.) specifically provides that it shall be enforced before a justice of the peace of the ward, district or township in which the claimant resides. The lien being purely a statutory lien, and the statute creating it providing for a specific remedy before a particular forum; that remedy must be pursued in the tribunal created to enforce the right; and no other court has original jurisdiction of the subject matter. The statutory remedy is exclusive. Moore v. White, 45 Mo. 206; Hall v. Hinkley, 32 Wis. 362; State v. Bittinger, 55 Mo. 596.
PRATT, BRUMBACK & FERRY, for the respondent.
I. As against defendant, Acheson, plaintiff has a lien for his unpaid balance. Sect. 3198, Rev. Stat. His lien takes precedence of appellant's for the whole amount of his balance, because it was for services rendered under one entire contract made before the execution of the mortgage, and of which contract appellant is chargeable with notice. Milner v. Norris, 13 Minn. 455; Hahn's Appeal,39 Pa. St. 409; Douglass v. Zinc Co., 56 Mo. 388; Dubois v. Wilson, 21 Mo. 213; Ches. Prov. Int. v. Stone, 56 N. H. 365; Soule v. Dawes, 14 Cal. 247; Batchelder v. Rand, 117 Mass. 176. The lien is a statutory one, not requiring a special agreement to create it, and as such, is paramount to the lien of a prior recorded mortgage for the whole amount due for such services, whether rendered before or after the execution and record of the mortgage. Case v. Allen, 21 Kansas, 217; Scott v. Delahart, 5 Lansing (N. Y.) 372.
II. The suit was brought in the right court. The statutory remedy was not exclusive, because not adequate. Johnston v. Louisville, 11 Bush (Ky.) 527; Trust v. Person, 3 Abb. Pract. 85; Ryan v. Gallatin Co., 14 Ill. 78; Church v. Robertson, 71 Mo. 327; Butler v. Lawson, 72 Mo. 245; Bridge Co. v. Hayes, 5 Cushing (Mass.) 460. Appellant cannot complain of the jurisdiction of the court to decree a sale of the property because such decree is not directed against him, and he is not injured thereby. Papin v. Massey, 27 Mo. 445; Wall v. Nay, 30 Mo. 494; Johnson v. Armdall, 34 Mo. 338; Ames v. Gilmore, 59 Mo. 537; Smith v. Railroad, 53 Mo. 338. If the judgment of the court is correct in establishing plaintiff's lien as paramount, then he has the right to enforce it in full, and appellant's only claim is to have the surplus turned over to him, and this is secured to him by the decree. If the court was wrong in enforcing this lien against Acheson's property in this proceeding, Acheson, and only Acheson can complain, and he does not appeal.
Did the circuit court have jurisdiction of this cause?
Section 3198, Revised Statutes, is as follows: “Hotel, inn and boarding house keepers shall have a lien upon the baggage and other valuables of their guests or boarders brought into such hotel, inn or boarding house by such guests or boarders, and upon the wages of such guests or boarders, for their proper charges, due from such guests or boarders for their accommodation, boarding and lodging, and such extras as are furnished at their request.”
The lien in this case did not exist at common law; it was created by said statute. This is conceded. It is true, because at common law an inn-keeper had a lien upon the goods of guests only, and not upon the goods of persons boarding with such inn-keepers under a special contract. Hursh v. Byers, 29 Mo. 469.
By section 3199, it is provided that “the lien provided for in the preceding section shall be enforced as provided in section 3197.” The last named section provides that the lien shall be enforced by suit before a justice of the peace of the ward, district or township in which the claimant resides, in the manner provided by said section. The claimant must file with the justice a statement setting forth his account. And it is provided by said section that
The plaintiff's right to the lien in this case existed from the time he furnished the boarding, lodging, etc. to the defendant Acheson, and in that sense the lien may be said to have existed from that time. But in fact the lien depends upon the existence of an indebtedness due from the defendant, Acheson, to the plaintiff for said boarding, lodging, etc. Unless such indebtedness exists the lien does not exist. It is necessary to...
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