La Crosse Lumber Co. v. Powell

• Decision Date: 02 January 1923
• Docket Number: No. 17532.,17532.
• Citation: 247 S.W. 1022
• Parties: LA CROSSE LUMBER CO. v. POWELL et al.
• Court: Missouri Court of Appeals

247 S.W. 1022

LA CROSSE LUMBER CO. v. POWELL et al.

No. 17532.

St. Louis Court of Appeals. Missouri.

January 2, 1923.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

Action by the La Crosse Lumber Company against B. A. Powell and another. From judgment overruling motion to correct filing date of its petition, plaintiff appeals. Affirmed.

Fry & Fry, of Mexico, Mo., for appellant. Rodgers & Buffington, of Mexico, 110., for respondents.

DAUES, J.

This appeal arises out of an action to enforce a mechanic's lien claim against certain property in Audrain county for materials furnished by appellant to respondent C. M. Clay and his contractor. The lien account was filed in the office of the circuit clerk of said county on October 21, 1920, the amount of the account being $1,038.13. Thereafter appellant filed this suit to enforce the said lien. Whether said petition was filed on January 19, 1921, and hence within 90 days from the date of the filing of the account, or whether it was filed on January 20, 1921, is the question from which this controversy arises.

Respondent Clay on March 22, 1921, filed an answer to this petition, and on the following day filed his motion to dismiss the suit as to him on the ground that said action was not commenced within 90 days after the day of the filing of the mechanic's lien, as required by statute, and thereupon appellant filed a motion to correct the filing date on the petition so as to show its filing as of the date, January 19, 1921, instead of January 20, 1921. These two motions, involving one and the same issue, were presented together, and after hearing the testimony on said motions the court overruled plaintiff's motion to correct the filing date and sustained defendant Clay's motion to dismiss. From the judgment rendered, plaintiff appeals.

There is no dispute that on October 21, 1920, appellant, La Crosse Lumber Company, properly filed a mechanic's lien account against certain property owned by Clay. As to the date and the circumstances surrounding the filing of the suit to enforce said mechanic's lien there is a conflict in the evidence.

For plaintiff, W. W. Fry, Jr., testified that, as a member of the law firm of Fry & Fry, he saw the petition being prepared on the afternoon of January 19, 1921, in the firm's law office; that on his return to the office the next morning (January 20, 1921) he "did not see anything of the petition in the office."

Witness F. P. Kelso testified that he was manager of the La Crosse Lumber Company at Mexico, Mo., and that he prepared a statement of account against the defendants on January 19, 1921, and that he did not complete it until about 5-o'clock p. m., or later on that day, and that same was then delivered to the firm of Fry & Try, lawyers.

Miss Denton, stenographer in the abovenamed law office, testified that she typed the petition for the firm, and, while she did not recall the exact date, she thought it was about January 19, 1921, and that she did not finish the work until about 5 or 3 o'clock of that day; that she thought one of the firm signed the petition on that day; that on the next day, January' 20, 1921, she saw nothing of the petition and that she did not Look for same.

W. W. Fry, Sr., testified that on or before noon January 19, 1921, his attention was called to the fact that the petition had to be filed; that on that day he called Mr. Kelso, of the plaintiff company, over the telephone and had him prepare copies of the account necessary to be filed with the petition; that about 5:30 p. m. of that day Kelso came to the law office, and that witness then telephoned to Mr. Elliott, the circuit clerk of Audrain county, and told him that he was not able to get the papers ready before 9 o'clock and asked the clerk whether he would be there to receive same; that the clerk informed him that he did not think he would. Witness said Elliott informed him that he was "going to a prayer meeting to-night, and I will come by your office and get them." Witness testified that he did, however, go to the clerk's office to file the papers and found the clerk had gone; that about 7 o'clock that evening the clerk came to the law office of Fry & Fry, and there received the petition; that the clerk put same in his pocket and "went to the prayer meeting." Witness, a week later, discovered that the papers were marked "Filed" as of the date January 20, 1921. On cross-examination this witness testified that he had said to a number of persons after the controversy as to the date of the filing arose that "if it was filed too late it was his (Kelso's) fault because he didn't come down and bring that suit, because I urged him to bring it days before that." When asked if he had not stated to Mr. Buffington, of counsel for defendant, that the lien was filed too late, this witness answered, "Yes; I counted, and I told him it was 91 days according to that filing." He said he computed the time from the filing date of the notice, to wit, October 21, 1920.

E. F. Elliott testified on behalf of defendant that he was circuit clerk of Audrain county at the time of this controversy; that he kept in his office a record showing the time of the filing of suits, which record is known as the minute book. Witness produced the record from which he read the minutes, as follows:

"Now, on this, January 20, 1921, comes plaintiff and filed petition to enforce lien in this cause," etc.

The minutes showed by appropriate reference that it was the petition now in question. Witness testified that the petition was, in fact, delivered to him on January 20, 1921. He examined the file marks of the petition and said that same was in the handwriting of himself or his deputy, he was not sure which; that the file mark was put on the petition on January 20, 1921, the day the petition was filed. This witness also testified that the original statement of account in said mechanic's lien was filed October 21, 1920, at 5 o'clock p. m. On cross-examination of this witness the following questions...