Early v. Smallwood
| Decision Date | 31 December 1923 |
| Parties | T. R. EARLY v. YEWELL G. SMALLWOOD, PEOPLES TRUST COMPANY, FRANK PALERMO, COEN BUILDING MATERIAL CONSTRUCTION COMPANY and WILLIAM D. WOOD; YEWELL G. SMALLWOOD, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. C. A. Burney Judge.
Affirmed.
J G. Hutchison, J. D. Brown and E. C. Hall for appellants.
(1) The plaintiff's petition does not state facts entitling him to a mechanic's lien, in that it does not allege that plaintiff had taken the steps necessary under the statute to entitle him to a mechanic's lien. McWilliams v Allan, 45 Mo. 574; Kneisley Lumber Co. v. Stoddard, 113 Mo.App. 309; General Fire Ext. Co. v. Scwartz, 165 Mo. 171. (2) The Coen Building Material Company neither stated in its cross-petition, nor established by the evidence introduced in support thereof, facts entitling it to mechanic's liens, or to a personal judgment against the appellant. (a) Such cross-petition did not state that it had taken the proper steps necessary under the statute to entitle it to a mechanic's lien. Boland v. Webster, 126 Mo.App. 591. (b) The evidence it introduced is insufficient to entitle it to a mechanic's lien, in that it fails to show that the materials went into and were used in the construction of the buildings, or any of them. Carthage Limestone Co. v. Church, 156 Mo.App. 671; Simmons v. Carrier, 60 Mo. 585. (c) The judgment and decree does not conform to, and is not responsive to, such cross-petition. Schneider v. Patton, 175 Mo. 684; State v. Modlin, 197 Mo. 376. (d) Such cross-petition contained no allegation whereon to base the personal judgment entered against the appellant. Orchard v. Bank, 121 Mo.App. 338. (3) The judgment and decree is erroneous in that it attempts to make the decree a separate judgment, in favor of each of the respective lien claimants, and to give the right to have a separate execution, in favor of each of such lien claimants, for the separate enforcement of his individual judgment. Sec. 1528, R. S. 1919; Mann v. Doerr, 222 Mo. 1; McMamanus v. Burrows, 246 Mo. 438. (4) Palermo did not state facts, in his intervening petition either entitling him to invoke the jurisdiction of the court below, or showing that he was entitled to a lien on the property involved. (a) The court below had no jurisdiction to entertain such intervening petition, in that the facts therein stated were not responsive to, or calculated to enable him to make any defense to, the plaintiff's petition. Joyce v. Growney, 154 Mo. 253. (b) Such intervening petition does not state facts entitling him to a lien on the property involved, in that it does not state, or show, a contract, either express or implied, for a mortgage thereon. Blackburn v. Tweedie, 60 Mo. 507; Carter v. Holman, 60 Mo. 503; Stark v. Kirkley, 129 Mo.App. 353; 27 Cyc. 976. (c) The evidence introduced by Palermo showed, conclusively, that he had no lien on the property involved. 1st, The original contract between Palermo and the appellant negatived the right to such a lien; and that he, himself, violated such contract. 2nd, The evidence further showed that any right to such a lien that might have existed was waived by Palermo's conduct, and hindered appellant by tying the property by a law suit. (d) The judgment in favor of Palermo is erroneous in that in the decree, what is alleged in his intervening petition to be a right to a separate lien, on each of the four lots, is decreed to be a single lien, on all four of them, and is not, therefore, responsive to, and does not conform to the allegations of his intervening petition. Roden v. Heim, 192 Mo. 71; Schneider v. Patton, 175 Mo. 684; State v. Modlin, 197 Mo. 376; Advance Threshing Co. v. Speck, 167 Mo.App. 470. (5) The judgment in favor of Peoples Trust Company is erroneous, in that it is based upon an amended answer and cross-petition filed by it, at the conclusion of the evidence on the issues between Palermo and appellant, and to which the appellant was refused the right to file an answer, or make any defense whatever. Sec. 1285, R. S. 1919; Bergler v. University City, 190 S.W. 622. (6) The judgment in favor of Peoples Trust Company is erroneous in that no testimony whatever was offered by it, or received, or heard by the court to sustain the allegations of its said amended answer and cross-petition, upon which it is based. (7) The entire judgment and decree herein is erroneous in that it is the result of the active interference and procurement of and adversary conduct of the receivers, against the appellant, and in favor of the lien claimants; and of the fact that such receivers appeared as attorneys for, and represented Palermo and the Peoples Trust Company, while acting as receivers herein, when the law required of them absolute impartiality and neutrality as between all parties hereto. (a) The court will not inquire as to whether actual injury has resulted to appellant therefrom, but will condemn any course of procedure by the receivers which the law declares must not be taken and resulting in conditions in which the whole judgment is even subject to doubt as to its effect. Broussard v. Mason, 187 Mo.App. 281. (b) The law is opposed to attorneys for a party to the litigation, wherein a receiver is appointed, being the receiver; and it was the duty of these receivers at once to withdraw as attorneys for any of the parties to this litigation, upon being appointed receivers. High on Receivers (4 Ed.) sec. 70, 175; Bank v. Kent, 43 Mich. 292; Finance Co. v. Railroad Co., 45 F. 436; Trust Co. v. Land Co., 72 F. 575; McCloud v. New Albany, 66 F. 378, 13 C. C. A. 525; Halstead v. Forest Hill Co., 109 F. 820. (2) Neither the receivers themselves, nor the clients for whom they acted, will be allowed to retain any advantage that has, or that may have resulted or been procured, by reason of the active procurement or interference of the receivers in their behalf. Gilbert v. Hewetson, 79 Minn. 326; Penzel v. Williams, 53 Ark. 81; Cook v. Martin, 75 Ark. 40; Harrigan v. Gilchrist, 121 Wis. 127; Donahue v. Quachenbush, 75 Minn. 43; Hedrick v. Miller, 123 Ind. 304; Tozer v. O'Gorman, 60 Minn. 42; Hackley v. Draper, 60 N.Y. 88; Jewett v. Miller, 10 N.Y. 402; Carr v. Houser, 46 Ga. 477; French v. Harness Co., 184 Pa. St. 181; Shadewald v. White, 74 Minn. 208; Broussard v. Mason, 187 Mo.App. 281.
James M. Johnson, A. N. Adams, Daniel V. Howell, Donald W. Johnson and Davis & Woodruff for respondents.
(1) Appellant by stipulating that judgment should be rendered sustaining and foreclosing the mechanics' liens waived any right to and is estopped from questioning the validity of the judgment on the ground that the plaintiff had not taken the steps necessary under the statute to entitle him to a mechanic's lien. Stone v. Trust Co., 183 Mo.App 279; Hinkle v. Kerr, 148 Mo. 43; In re McManus Estate, 199 S.W. 422; Harniska v. Dolph, 133 F. 158; Seiler v. Union Mfg. Co., 50 W.Va. 208; Karnes v. Black, 215 S.W. 191; Light Co. v. Minneapolis, 168 N.W. 588; Wyss v. Bockman, 212 S.W. (Tex. Civ. App.) 297; Cobb v. Killingsworth, 187 P. 479; Neil v. Hyde, 186 P. 710; Moore v. Butler, 103 S. E. (Ga.) 154; Sidelinker v. Water Co., 105 A. 122; Wagner v. Ruhl, 106 A. 2. (2) Appellant has waived any right to question, and is estopped from questioning, the validity of the mechanic's lien judgment of Coen Building Material Company, by the stipulation filed in the cause and by the agreement made in open court by appellant concerning the issues to be tried by the court. Authorities supra; Stone v. Trust Co., 183 Mo.App. 279; Hinkle v. Kerr, 148 Mo. 48; In re McManus Estate, 199 S.W. 422. (a) Coen Building Material Company was entitled to a personal judgment against the appellant under the stipulation filed in the cause. (b) The personal judgment complained of has been paid and satisfied and is harmless to appellant. (c) Appellant cannot question the personal judgment here because he did not bring the alleged error of which he now complains to the attention of the trial court while the judgment was yet in the control of the court, by motion in arrest of judgment. Stid v. Railroad, 211 Mo. 415. (d) If the personal judgment was improperly rendered the same is merely an error of law (the facts having been agreed upon by stipulation), which this court can correct by rendering the judgment the lower court should have given. Sec. 1514, R. S. 1919; Daggs v. Smith, 193 Mo. 502; Patterson v. Patterson, 200 Mo. 341; State ex rel. v. Trust Co., 209 Mo. 494; Henry Co. v. Salmon, 201 Mo. 172; Eckle v. Ryland, 256 Mo. 438; Cox v. Sloan, 158 Mo. 429; General Elec. Co. v. Interstate Elec. Co., 204 S.W. 933. (3) The court properly entered a separate judgment in favor of each of the respective lien claimants and properly decreed a separate execution in favor of each for the enforcement of said judgments. Secs. 7240, 7241, 7242, R. S. 1919; Hydraulic Press Brick Co. v. Lane, 198 Mo.App. 438; Secs. 1521, 1522, 1603, R. S. 1919; 1 Freeman on Executions, sec. 16. Appellant cannot complain of the judgment rendered because no motion in arrest of judgment was filed. Stid v. Railroad, 211 Mo. 414. (4) Palermo was entitled under the law and the evidence to the judgment rendered. (a) The sufficiency of Palermo's intervening petition to support the judgment in his favor, and the correctness of said judgment, are not before this court for review; appellant neither demurred to said petition, nor to the evidence offered by Palermo thereunder, nor did he attack the judgment by motion in arrest of judgment. On the contrary appellant filed answer to said petition in which he asked affirmative relief. All questions therefore concerning the sufficiency of said petition and the correctness of the judgment rendered for...
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