Continental Elec. Co. v. Ebco, Inc.

• Decision Date: 13 January 1964
• Docket Number: No. 1,No. 50087,50087,1
• Citation: 375 S.W.2d 134
• Parties: CONTINENTAL ELECTRIC COMPANY, Appellant, v. EBCO, INCORPORATED, Defendant, and Ford Motor Company, Respondent
• Court: Missouri Supreme Court

Page 134

375 S.W.2d 134

CONTINENTAL ELECTRIC COMPANY, Appellant, v. EBCO, INCORPORATED, Defendant, and Ford Motor Company, Respondent.

No. 50087.

Supreme Court of Missouri, Division No. 1.

Jan. 13, 1964.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 10, 1964.

Robert W. Cook, Kansas City, Linde, Thomson, Vandyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant.

Warren E. Slagle, Slagle & Bernard, Kansas City, for respondent.

WELBORN, Commissioner.

This is an action by the appellant, Continental Electric Company, against Ebco, Incorporated, to recover for materials furnished by appellant to Ebco, a subcontractor on a project of the respondent, Ford Motor Company, for construction of buildings at Ford's plant in Clay County, Missouri. The action also sought to enforce a materialman's lien against the Ford plant property. Ebco defaulted on the cause of action against it. Upon trial, a jury returned its verdict in favor of the appellant on its claim of a lien against the Ford property. After the verdict, respondent filed a motion for judgment in accordance with its motion for directed verdict at the close of the case and an alternative motion for new trial. The trial court sustained the motion for judgment and also ordered that, in the event such judgment not be upheld, the motion for new trial should be considered sustained. Appellant appealed to the Kansas City Court of Appeals which reversed the judgment of the trial court and ordered judgment entered in accordance with the verdict (365 S.W.2d 746). On motion of respondent, alleging among other grounds that the decision of the Court of Appeals conflicted with controlling decisions of this court, the Court of Appeals transferred the cause to this court. We now have the matter before us as on original appeal. Civil Rule 84.05(h), V.A.M.R.

One of the grounds specified by the trial court for sustaining respondent's motion for judgment was that the trial court lacked jurisdiction of the cause of action to enforce the lien for the reason that, after the first summons had been issued against Ebco and returned unserved, appellant failed to request the issuance of an alias summons for a period in excess of six months after the original summons had been returned unserved. Respondent had raised this objection by its answer upon which the case was tried.

The facts relative to this issue are that appellant's lien statement was filed in the office of the Clay County Circuit Clerk on December 23, 1959. This action against Ebco and Ford was filed in the Clay County Circuit Court on February 5, 1960, well within the 6-month limitation prescribed by Section 429.170 RSMo 1959, V.A.M.S. Summons issued on the same date. Ford was served shortly thereafter. The summons for Ebco showed an address in Kansas City and that summons was forwarded to the Sheriff of Jackson County on February 10, 1960. The Jackson County Sheriff attempted to serve Ebco at the address shown on the summons, which, according to the appellant, had been found in the Kansas City telephone directory. On February 10, the Jackson County Sheriff notified counsel for appellant that the office of Ebco at the address given was empty and locked and that the summons had not been served. A 'non est' return was made and the summons returned to the Clay County Circuit Clerk who on February 11, 1960, advised appellant's counsel of the 'non est' return.

No further process for Ebco issued until October 10, 1960, after a pre-trial conference on October 7. On October 10, an alias summons issued at appellant's request. It was served October 14, 1960, by the Jackson County Sheriff by delivery to the registered agent of Ebco, Inc., Mr. Charles Ferm, an attorney, at the registered office of Ebco, 1005 Grand Avenue, Kansas City. Mr. Ferm had been designated the registered agent and that address the registered office of Ebco in its articles of incorporation filed in the Jackson County Recorder's office on October 10, 1958.

As the subcontractor, who purchased the materials for which the lien was sought, Ebco was a necessary party, to any action to enforce a materialman's lien. Section 429.190, RSMo 1959, V.A.M.S. Hughes Bros. Paint & Hardware Co. v. Prewitt, 170 Mo.App. 594, 157 S.W. 120, 121. An action to enforce a lien must be commenced against all the necessary parties within the time prescribed by statute for instituting the suit after filing of the lien notice. Quigley v. William M. Rideout & Co. et al., Mo.App., 127 S.W.2d 37; Steinmann v. Strimple, 29 Mo.App. 478; Reis v. Taylor, Mo.App., 103 S.W.2d 892; Harrison v. Creason, 238 Mo.App. 118, 176 S.W.2d 849. The time now specified is six months (Section 429.170), having been extended from ninety days in 1959 (Laws of Mo.1959, S.C.S.S.B. 257 and 295).

Respondent's position is that, under the cases of Mayne v. Jacob Michel Real Estate Co., 237 Mo.App. 952, 180 S.W.2d 809; St. Ferdinand Sewer District v. Turner, Mo.App., 208 S.W.2d 85, and Driscoll v. Konze, Mo.Sup., 322 S.W.2d 824, the delay by appellant for a period in excess of six months in obtaining the alias summons which was served on Ebco nullified the effect of the filing of the suit to prevent the expiration of the limitation period. Appellant's response is that the requirements of the statute were satisfied when the suit was filed within the limitation period and that failure to serve summons within such period is not a bar to the action so long as the plaintiff did not request or participate in the delay of service. Appellant relies on City of St. Louis v. Miller, 235 Mo.App. 987, 145 S.W.2d 504; Henry Weis Cornice Co. v. J. B. Neevel & Sons et al., 187 Mo.App. 496, 174 S.W. 159; Hill-Behan Lumber Co. v. Sellers, Mo.App., 149 S.W.2d 465, and also cites Driscoll v. Konze, supra.

As above mentioned, Section 429.170 requires that the action to enforce a lien be 'commenced' within six months after the filing of the lien statement. In our practice, an action is commenced by the filing of a petition and the issuance of summons. Civil Rule 53.01, V.A.M.R. The original summons is to be issued by the clerk forthwith upon the filing of the petition. The plaintiff is not obliged to take any further steps for such purpose. However any additional summons issues only at the request of the plaintiff. Civil Rule 54.01, V.A.M.R.

In Mayne v. Jacob Michel Real Estate Company, supra, a petition on a claim for sewer taxes subject to the 5-year statute of limitations was filed on November 10, 1932. Summons issued on November 21, 1932, and was returned unexecuted on January 9, 1933. No other process issued until an alias summons issued on July 7, 1943, which was served on July 14, 1943. The defendants raised the defense of the statute of limitations and in sustaining their defense the court stated (180 S.W.2d 810):

'In this case the petition was filed and a writ of summons was issued upon the filing of the petition. There is no question that this was the commencement of the suit within the meaning of the statute of limitations, but the fact that the suit was commenced prior to the running of the statute is not necessarily decisive. The question with which we are here concerned is as to whether or not there was such delay in the issuance of other process following the return of the original writ as to interrupt the continuity of the suit so that the running of the statute became a bar to the suit.'

The court further stated (180 S.W.2d 812):

'The cases differ somewhat with respect to the course of reasoning adopted, but they all proceed upon the same underlying principle and arrive at the same result. They all manifest the same unwillingness to permit the period of limitation to be prolonged by the failure of the plaintiff to make diligent use of the means provided by law for obtaining jurisdiction of the defendant.'

The court concluded (180 S.W.2d 813):

'It is clear that the present suit is barred by limitation, and defendant's instruction in the nature of a demurrer to the evidence was erroneously refused.'

St. Ferdinand Sewer Dist. v. Turner, supra, was also a suit to recover sewer taxes. Petition was filed on September 27, 1932. Summons issued on October 24, 1932 and was returned unexecuted on January 9, 1933. No further process issued. On September 23, 1946, motion to dismiss the action under the 5-year statute of limitations was sustained. In upholding this action, the St. Louis Court of Appeals stated (208 S.W.2d 88):

'We held in the Mayne case, under facts the same as in this case, that the statute of limitation was not tolled by the mere filing of the petition and issuance of a summons which was returned unexecuted, and thereafter the term of over five years elapsed without further process being issued. It is unnecessary to again review all of the authorities which were reviewed in that case. However, one case that was cited and quoted from, and which we think is a correct pronouncement of the law, was Clark v. Kellar, 3 Bush, Ky., 223, wherein the court said: 'To prevent the statute of limitations from running, a suit must be brought and prosecuted in good faith; and, if the time constituting the bar is permitted to elapse between the suing out of one process until another, the mere bringing the suit will not prevent the statute from running, and is no legal reason why the bar should be disallowed.''

In Driscoll v. Konze, supra, a writ scire facias issued on April 11, 1949, to revive a judgment which would have expired on April 18, 1949. Some time prior to July 27, 1949, the sheriff made a 'not found' return and on the latter date service by publication was ordered. The defendant not appearing, a judgment of revivor was entered on October 29, 1949. Some time thereafter, defendant moved to quash the judgment of revivor on the grounds that the order of publication was void. The Supreme Court held the judgment void (296 S.W.2d 31), and its mandate was filed in the trial court on ...