Dalton v. St. Louis, M. & S. E. Ry. Co.

• Decision Date: 16 May 1905
• Citation: 113 Mo. App. 71,87 S.W. 610
• Parties: DALTON v. ST. LOUIS, M. & S. E. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

87 S.W. 610

113 Mo. App. 71

DALTON v. ST. LOUIS, M. & S. E. RY. CO.^*

St. Louis Court of Appeals. Missouri.

May 16, 1905.

RAILROADS — MECHANICS' LIENS — SERVICE OF ACCOUNT — SUFFICIENCY.

1. Under Rev. St. 1899, § 4241, relative to liens on railroads for materials and labor furnished for their construction, and declaring that all persons claiming such lien must serve a copy of the account on the person or corporation owning or operating the road, the service must be personal, and service upon a station agent is insufficient.

2. The term "personal service" has a fixed, definite meaning in law, and does not include service by leaving a copy at defendant's last-known place of abode, or mailing a copy to him.

3. Service by mailing is insufficient where the registered letter containing the notice arrived one day too late.

Appeal from Circuit Court, Butler County; James L. Fort, Judge.

Action by James L. Dalton against the St. Louis, Memphis & Southeastern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

James Orchard, for appellant. E. R. Lentz and F. D. Gebhardt, for respondent.

BLAND, P. J.

In the years 1901 and 1902 the Southern Missouri & Arkansas Railroad Company was constructing its railroad through Butler and Ripley counties, Mo., and Randolph county, Ark., to Pocahontas. I. M. Dittenhoefer contracted with the railroad company to construct its road. He sublet the building of the bridges, bent bridges, and cattle guards from the city of Poplar Bluff, in Butler county, to Pocahontas, Ark to J. H. McCarthy, who, in turn, sublet the building of the bridges, bent bridges, and cattle guards from Poplar Bluff to the Missouri and Arkansas state line to William Baumhoefer. Baumhoefer's contract required him to begin the work on October 21, 1901, and to complete it on or before the 15th day of December following, and time was made the essence of the contract. He entered upon the performance of his contract, bought large lots of lumber, piling timbers, etc., completed some of the bridges, and had others under way, but failed to complete the work in the time agreed upon, and was unable to pay his work hands or the lumbermen who had furnished material; and McCarthy some time in January, 1902, either took entire charge of the work, or put a number of his own hands to work with those of Baumhoefer, who continued to work with Baumhoefer, under McCarthy's supervision, until the work was completed. A large lot of the lumber, tie timber, etc., bought by Baumhoefer, but mostly paid for by McCarthy, was used in the work. Baumhoefer claimed that he continued the work until April 9, 1902. Within 90 days of this date, for the purpose of acquiring a lien on the railroad, as provided by chapter 47, art. 4, Rev. St. 1899, Baumhoefer filed his declaration and statement of his account in the office of the clerk of the circuit court of Butler county, and undertook to serve notice of his account and the filing of the same on the defendant, St. Louis, Memphis & Southeastern Railway Company, who has taken over the property and franchises of the Southern Missouri & Arkansas Railroad Company. In due time after filing his lien, Baumhoefer commenced a suit in the Butler circuit court against both the St. Louis, Memphis & Southeastern Railway Company and the Southern Missouri & Arkansas Railroad Company to foreclose the same. McCarthy was not made a party defendant to the suit. After commencing the suit, Baumhoefer assigned his lien to James L. Dalton, who, on his own motion, was substituted by the court as party plaintiff in place of Baumhoefer. Dalton filed an amended petition, on which, with the answer of the defendant filed thereto, and plaintiff's reply to the answer, the cause was tried, resulting in a verdict for plaintiff for $4,000, and in favor of his lien. Judgment was entered on the verdict, from which an appeal was taken by defendant to this court.

Plaintiff made two efforts to serve notice of his lien account on the railroad company, both of which it was claimed by the company on the trial were ineffectual. The trial court overruled the objection, and held that the service of the lien account was sufficient, and admitted the same in evidence. Defendant duly excepted to this ruling, and contends here that the service of the lien account was not good, and for this reason the judgment should be reversed. The evidence shows that a copy of the lien account was delivered to H. E. Johnson, station agent of defendant at Poplar Bluff, by the sheriff of Butler county, on July 5, 1902. It also shows the following effort of plaintiff to serve defendant company, through the United States mail, with a copy of the account and notice, and that the same had been filed for the purpose of acquiring a lien on the railroad:

"July 5, 1902. E. F. Blomeyer, Cape Girardeau, Mo. — Dear Sir: I inclose you herewith copy of lien statement of William Baumhoefer against your road for the sum of $7695.10, on account of piling, bridge and cattle guard work, the original of which was this day filed with the clerk of the circuit court of Butler county, Missouri. Very respectfully, [Signed] E. R. Lentz.

"Registry Receipt. Post Office at Poplar Bluff, Missouri. Registered letter (No. 51) of E. R. Lentz, addressed to E. F. Blomeyer, Cape Girardeau, Missouri. Received 7—7, 1902. ____, P. M. [Postmark of delivering office, Cape Girardeau, Mo., July 9, 1902, 11:30 a. m., and date of delivery.]

"Post Office Department — Official Business. Penalty of $300.00 for private use. Return to (name of sender) E. R. Lentz (street and number or Post Office box) Post Office at Poplar Bluff, Mo. (County ____) (State ____).

"Registry Return Receipt. Received from the Postmaster at Cape Girardeau (delivering office) Registered Letter No. 51, from Poplar Bluff, Mo. (office of origin) addressed to E. F. Blomeyer (name of addressee). Date (date of delivery) 190_. E. F. Blomeyer (name of addressee). Care Wm. A. J. Wild (Signature of addressee's agent).

"(When delivery is made to an agent of the addressee, both addressee's name and the agent's signature must appear in this receipt.)

"A registered article must not be delivered to any one but the addressee, except upon the addressee's written order. When the above receipt has been properly signed, it must be postmarked with name of delivering office and...