Dierks & Sons Lumber Co. v. McSorley, 22380

• Court: Missouri Court of Appeals
• Writing for the Court: DEW
• Citation: Dierks & Sons Lumber Co. v. McSorley, 289 S.W.2d 164 (Mo. App. 1956)
• Decision Date: 02 April 1956
• Docket Number: No. 22380,22380
• Parties: DIERKS & SONS LUMBER COMPANY, a Corporation, Respondent, George H. Grover and Lulu I. Grove, Husband and Wife, Appellants, v. Thomas F. McSORLEY, d/b/a Avenue Plumbing & Heating Company, Respondent.

Page 164

289 S.W.2d 164

DIERKS & SONS LUMBER COMPANY, a Corporation, Respondent George H. Grover and Lulu I. Grove, Husband and Wife, Appellants, v. Thomas F. McSORLEY, d/b/a Avenue Plumbing & Heating Company Respondent.

No. 22380.

Kansas City Court of Appeals, Missouri.

April 2, 1956.

Francis G. Hale, Robert E. Coleberd, Liberty, for appellant.

Williams & Norton, North Kansas City, for respondent.

DEW, Presiding Judge.

This is an appeal from that part of a court's judgment and decree in an equitable mechanic's lien suit which allowed respondent McSorley, a subcontractor, a mechanic's lien in the sum of $884.73 upon certain real estate belonging to the appellants.

The parties agree that there is only one principal question involved in this appeal and that is whether or not respondent McSorley's cross-petition for a mechanic's lien was filed within the time required by law. The pertinent facts are as follows:

On November 9, 1953, respondent McSorley filed notice of a mechanic's lien on certain real estate in question belonging to the appellants to secure his claim as subcontractor against George W. Hartman, general contractor, for labor and materials furnished for and used in certain improvements on such real estate.

On December 1, 1953, respondent McSorley filed his mechanic's statement in the office of the circuit clerk. He promptly filed a suit against appellants, and on January 9, 1954, received judgment in the sum of $835.20. He was also decreed a mechanic's lien therein on the above mentioned real estate of appellants to secure the judgment. He had not made the general contractor a party to the action.

On January 23, 1954, respondent Dierks & Sons Lumber Company brought the present action in equity to recover of and from the defendant general contractor for labor and materials which, as a subcontractor, it had furnished him for use and which were used in the improvements on the real estate referred to belonging to the appellants, and for a mechanic's lien on the property with an adjudication of the interests of all the parties therein. In the petition the respondent McSorley was named, among others, as a defendant, who, the petition stated, had filed a mechanic's lien statement and was claiming a mechanic's lien against the real estate and improvements described.

On February 1, 1954, respondent McSorley voluntarily entered his appearance in the present action and waived summons. On February 11, 1954, he filed his separate answer. The answer generally denied certain paragraphs of the petition, among which was the one in which it was alleged that he had filed a mechanic's lien and was claiming a mechanic's lien on the real estate described. However, the answer further alleged that he was the plaintiff in a suit previously filed in Clay County, Missouri, in which the appellants here were the defendants; that on January 9, 1954, he had obtained judgment therein against the defendants (appellants herein) for $835.06, plus costs, and that the court therein had ordered that he have a mechanic's lien on the real estate described to secure such judgment. The prayer of his answer was for 'judgment of the court and for his costs'.

On March 22, 1954, appellants moved to strike from the separate answer of respondent McSorley his allegations pertaining to the prior action and judgment against appellants for the reason that such prior judgment was void because the general contractor was not made a party defendant in said action. The record shows no ruling on this motion, but that on April 1, 1955, respondent McSorley asked for and was given leave to file an amended answer. Thereafter, on April 19, 1955, he filed his present amended answer and cross-petition in the present equity suit, wherein he prays for a mechanic's lien on the real estate involved.

In respondent McSorley's amended answer and cross-petition he again denied certain paragraphs of the petition herein, including the one in which it was stated that he had filed his statement for a mechanic's lien and was claiming a mechanic's lien on the real estate in question. However, the amended answer and cross-petition proceeded to allege his claim for a decree enforcing his mechanic's lien. No reference was made in the amended answer and cross-petition to the prior action, or to any mechanic's lien judgment as described in the original answer. In fact, respondent McSorley now concedes that his prior decree of a mechanic's lien is void because the general contractor was not made a party to that action. Quigley v. William M. Rideout & Co., Mo.App., 127 S.W.2d 37, 39.

The appellants' answer to respondent McSorley's amended answer and cross-petition denied the controversial statements made and alleged that the amended answer and cross-petition were filed more than 12 months after McSorley had filed his mechanic's lien statement and should be dismissed. Throughout the trial appellants preserved that objection.

After trial, the court, among other provisions of its decree, gave the respondent McSorley a personal judgment against the defendant George W. Hartman, general contractor for $884.73 and a mechanic's lien therefor on the real estate of the appellants described. Thereupon, after their motion for new trial was denied, the appellants appealed from the judgment and decree, 'particularly that part thereof in favor of defendant Thomas F. McSorley, and against said appellants Grove'.

The appellants contend that respondent McSorley's amended cross-petition filed on April 19, 1955, claimed for the first time a mechanic's lien on appellants' property after more than a year since the filing of his lien statement in the office of the circuit clerk; that since the 90 day period within which a suit on a mechanic's lien must be commenced, as provided by Sections 429.170 and 429.310, had thus expired, his cross-petition was not only barred as to time, but the lien in fact had ceased to exist. Furthermore, the appellants state that such limitation is one of right and not merely one of remedy.

Respondent McSorley asserts that he commenced his action to enforce his mechanic's lien within the time as contemplated by the statutes, and that he has complied with all the requirements of law, its objects and purposes. He further submits that the 90 day limitation statute, Section 429.310, specifically applies to separate actions at law to enforce single mechanic's liens and not to equitable mechanic's lien suits.

The statutes creating liens of mechanics and material men and governing action thereon are Sections 429.010 to 429.340, inclusive, RSMo 1949, V.A.M.S. Section 429.170 reads as follows:

'All actions under sections 429.010 to 429.340 shall be commenced within ninety days after filing the lien, and prosecuted without unnecessary delay to final judgment; and no lien shall continue to exist, by virtue of the provisions of said sections, for more than ninety days after the lien shall be filed, unless within that time an action shall be instituted thereon, as herein prescribed.'

Section 429.180 provides that all actions on mechanic's liens shall be brought in the same manner as ordinary civil actions, as to pleadings, practice and proceedings.

Section 429.270 provides, in effect, that when there are two or more mechanic's lien claims against the same property, arising under any of the Sections 429.010 to 429.340, the same and the rights of the parties and of all others claiming an interest in the real estate involved may be determined and adjudicated in one equitable action.

Under Section 429.280, all parties claiming a lien or interest in the real estate involved in such equitable action, as disclosed by public records, shall be made parties to the action and those...