Davis v. Schuler

• Decision Date: 31 March 1866
• Citation: 38 Mo. 24
• Parties: ROBERT DAVIS et al., Plaintiffs in Error, v. CHARLES SCHULER et al., Defendants in Error.
• Court: Missouri Supreme Court

38 Mo. 24

ROBERT DAVIS et al., Plaintiffs in Error,

v.CHARLES SCHULER et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1866.

Error to St. Louis Land Court.

This was an action on a mechanic's lien. The petition, filed October 16, 1860, alleged that the defendant Charles Schuler was the contractor of the defendant Louis Peters for the erection of the house described in the petition; that said Schuler contracted with plaintiffs to furnish the materials and do the brick work thereof; that said Schuler was justly indebted to them in the sum of $915 for work and labor done on, and materials furnished for the erection of said building, and also contained all allegations necessary to constitute a cause of action, and prayed for a special execution, etc.

The petition also alleged, that after the notice of lien was given to said Louis Peters, he conveyed said property to the defendant Louis Ludwig, to hold the same in trust for the use of Emily Peters, the wife of Louis Peters, wherefore said Ludwig and said Emily Peters were made parties.

The answer of Louis Peters, Louis Ludwig, and Emily Peters, denied knowledge or information sufficient to form a belief if said Schuler was indebted to the plaintiffs in any sum. It admitted that, at the time the work was alleged to have been done, the land upon which the house was built was of record in the name of the defendant Louis Peters; it denied knowledge or information sufficient to form a belief if plaintiffs ever gave the notice alleged in the petition, or if they filed their lien in the office of the Land Court, or if any lien as required by law had ever been filed; and these were all the matters put in issue by the answer.

The defendant Schuler filed no answer, and a default was taken as to him. Emily Peters having died, the case was dismissed as to her.

On the trial, plaintiffs read in evidence a notice of a lien, dated the 2d day of August, 1860, addressed to Louis Peters, owner, &c., and the return of the marshal, showing that the same was served on him on the day of its date; also, a lien filed in the clerk's office of the St. Louis Land Court, on the 14th day of August, 1860, against Louis Peters, as the owner of the building and improvements.

Plaintiffs then introduced Ellis N. Leeds, who testified as to the amount of work done by the plaintiffs; that he measured it on the 17th day of April, 1860, and that it was not then finished.

Plaintiffs also introduced Charles Schuler, who testified that he was the contractor of Louis Peters for building the house described; that he employed plaintiffs to do the brick work, and that their work was not finished when the witness Leeds measured it.

Plaintiffs then rested their case.

The defendants then offered to read in evidence a paper purporting to be a lien filed on the 2nd day of July, 1860. This was a similar claim to that contained in the lien read by plaintiffs, but was filed against “Charles Schuler, and Louis Peters, agent for Emily Peters,” and did not allege that any notice of the claim was given to the owner, as required by law.

To the admission of this testimony the plaintiffs objected, on the ground that no notice was proven to have been given to the owner, as required by law, and because it was incompetent and illegal; but the court admitted the evidence, to which the plaintiffs excepted.

Defendants then offered in evidence a deed dated July 24, 1860, executed by Louis Peters, conveying the property described in the petition to Louis Ludwig, in trust for the use and benefit of Emily, the wife of said Louis Peters. This deed was acknowledged on the 29th day of July, and filed for record on the 2d day of August, the day on which the notice of lien was served on Louis Peters.

The defendants here closed.

Thereupon the court, at the instance of defendants, found that the papers purporting to be liens, dated July 2, 1860, and August 14, 1860, were upon the same property, and for the same claim; and ruled that the paper dated July 2, 1860, possessed the legal requirements of a lien, and that plaintiffs could not have judgment and execution against the property described, because the suit was not brought within ninety days after the filing of the paper dated July 2, 1860, and gave judgment in favor of Louis Peters and Louis Ludwig; to all which finding and action of the court plaintiffs at the time excepted.

Plaintiffs afterwards, and within proper time, filed their motion for a new trial; which being overruled, they excepted.

Judgment was rendered against Schuler, the contractor, for the amount claimed in the petition, with interest from the institution of the suit.

Mauro, for plaintiffs in error.

This case is not like the case of Mulloy v. Lawrence, 31 Mo. 583. In that case a perfect and complete lien was filed. The plaintiff failed to institute suit within ninety days thereafter. The court simply decided, that, having filed one lien, and failed to avail himself of it, he could not file another.

In this...