Croatian-American Building & Loan Ass'n v. Casper, 22090.

• Decision Date: 06 December 1932
• Docket Number: No. 22090.,22090.
• Citation: 54 S.W.2d 773
• Parties: CROATIAN-AMERICAN BUILDING & LOAN ASS'N BALKAN v. CASPER et al.
• Court: Missouri Court of Appeals

54 S.W.2d 773

CROATIAN-AMERICAN BUILDING & LOAN ASS'N BALKAN v. CASPER et al.

No. 22090.

St. Louis Court of Appeals. Missouri.

December 6, 1932.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be published in State Reports."

Action by the Croatian-American Building & Loan Association Balkan, a corporation, against Otto Casper and wife, the Louis Essig Lumber Company, a corporation, and others, in which defendant Lumber Company filed a cross-petition. Judgment for plaintiff, defendant Lumber Company and certain other defendants, and from an order overruling defendant Lumber Company's motion to impound a fund, deposited with an officer of plaintiff, and subject it to payment of the judgment for such defendant, it appeals.

Affirmed.

Richard F. Ralph, of Clayton, and Hiram N. Moore, of St. Louis, for appellant.

Conrad Paeben, of St. Louis, for respondent.

SUTTON, C.

This is an action in equity brought under the provisions of section 3180, R. S. 1929 (Mo. St. Ann. § 3180).

Plaintiff, in its petition, alleges that it is a corporation organized and existing by virtue of the laws of Missouri pertaining to building and loan associations, and, as such, is the holder of a bond in the sum of $8,000, dated June 4, 1925, executed by defendants Otto Casper and Anna Casper, his wife, to secure the payment of which defendants Otto Casper and Anna Casper executed a deed of trust in favor of plaintiff on their real property situate in the city of St. Louis, described as follows: Lot 1 in block 2 of Delor Heights subdivision and in block 5705 of the city of St. Louis, having a front of 35 feet on the east line of Newport avenue by a depth eastwardly of 115 feet to a private alley, bounded south by Delor street. That defendants Otto Casper and Anna Casper in the year 1925 entered into a contract with defendant Henry C. Grote for the construction of a building on their said real property, and that eleven other defendants named, including defendant Louis Essig Lumber Company, claim the right of liens as materialmen against said real property for materials furnished to, upon, and in, said property, at the special instance and request of defendant Henry C. Grote; and prays that an issue be made up between plaintiff and defendants to adjudicate the rights of all parties in the real property mentioned, and to determine the priority, if any, of any one lien over the other, and that a special commissioner be appointed to make a sale of said real property and distribute the proceeds thereof among the parties according to their respective legal and equitable rights.

To this petition defendant Louis Essig Lumber Company filed a cross-petition, alleging that defendant Henry C. Grote is justly indebted to it in the sum of $1,097.95, for materials furnished by defendant Louis Essig Lumber Company at the request of said defendant Grote; that said materials were furnished to and for, and used by, said defendant Grote in the construction of a one and one-half story brick dwelling house situate on the lot described in plaintiff's petition; that said lot, property, and improvements thereon were at the dates of furnishing said materials, and now are owned by the defendants Otto Casper and Anna Casper; that defendant Grote was the original contractor with defendants Otto Casper and Anna Casper for the construction of said building and improvements; that defendant Louis Essig Lumber Company duly filed its account for said materials and gave due notice of its claim to defendants Otto Casper and Anna Casper, as required by the law relating to liens of mechanics and materialmen; and praying that defendant Louis Essig Lumber Company have judgment for $1,097.95, with interest, against defendant Grote; and that the same may be declared a lien against the real property described in plaintiff's petition.

Hon. William J. Blesse was appointed as referee, and the cause was referred to him to try all the issues and make report of his findings.

Otto Casper and Vincent Budrovich testified at the hearing before the referee. Not all the testimony of these witnesses is preserved in the record here, nor is any of the testimony of the other witnesses preserved, but from the scraps of the testimony preserved, it appears that Otto Casper and his wife borrowed $8,000 from the plaintiff building and loan association, and executed their bond for that amount and a deed of trust on their property to secure the payment of the bond. The Caspers did not actually receive the $8,000 loaned them, but the amount was deposited with Vincent Budrovich, an officer of the plaintiff, who was to make the disbursements for the construction of the building on the property. The money was borrowed for the purpose of being used to pay for the construction of the building. The contract price between the Caspers and Grote for the construction of the building was $8,580, $8,000 of which was the loan from plaintiff building and loan association, and $580 of which was advanced by the Caspers, so...