Forest Lumber Co. v. Osceola Lead & Zinc Mining Co.

• Citation: 222 S.W. 398
• Decision Date: 02 June 1920
• Docket Number: No. 19893.,19893.
• Court: United States State Supreme Court of Missouri
• Parties: FOREST LUMBER CO. v. OSCEOLA LEAD & ZINC MINING CO.

222 S.W. 398

FOREST LUMBER CO. v. OSCEOLA LEAD & ZINC MINING CO.

No. 19893.

Supreme Court of Missouri, Division No. I.

June 2, 1920.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by the Forest Lumber Company against the Osceola Lead & Zinc Mining Company. From judgment for plaintiff, defendant appeals. Appeal dismissed.

George V. Farris, of Joplin, for appellant.

H. S. Miller, of Webb City, for respondent.

GOODE, J.

This action was filed to recover from the defendant damages caused to plaintiff by the act of defendant in removing from leasehold premises in Newton county articles of personal property against which plaintiff held a lien for labor and material. Both of the parties to the action are business corporations. The property involved consisted of two steam boilers, an engine, and other pieces of machinery and appliances used in carrying on lead and zinc mining. The lien of the plaintiff on these articles was filed against the Sleepy Hollow Mining & Development Company, another corporation which was engaged in mining in Newton county. The articles of machinery and equipment the plaintiff held a lien on bad been located in Jasper county before the lien claim was filed and before the work and material were done and furnished for which a lien was asserted, and had been taken from Jasper county to Newton county by the Sleepy Hollow Company after it had acquired the title to them by purchase from their original owner, the Leroy Mining Company. To secure payment of the purchase price, or part of it, the Sleepy Hollow Company gave a deed of trust in the nature of a chattel mortgage on the articles to J. T. Todd, as trustee for the Leroy Mining Company. The purchase by the Sleepy Hollow Company occurred October 21, 1913. On February 23, 1914, after the Sleepy Hollow Company had moved the property to Newton county, the deed of trust on it was recorded in that county; and it was in Newton county that the plaintiff, the Forest Lumber Company, did work and furnished material for the housing of the articles in frame buildings, we understand, and perhaps did other work to prepare them for use in the mine of the Sleepy Hollow Company in Newton county. They were located on leased premises, but we need not describe the premises.

The lien claim or statement of the Forest Lumber Company was filed in the office of the clerk of the circuit court of Newton county January 22, 1914, and on the same day said company, the present plaintiff, filed a suit in said court to establish its lien against the property in controversy. On a day not stated, in May, 1914, said property was sold under the aforesaid chattel mortgage or deed of trust and bought by Amos Hatton, not for himself, but for the Osceola Lead & Zinc Mining Company (this defendant), of which he was the president. Said articles of property were detached from their place in the Newton county mining plant and transferred by the defendant back to Jasper county. This was done after the plaintiff's lien statement was on file in the office of the circuit court of Newton county and after an action to enforce it had been begun. Lien statements were filed by other claimants against the property, to wit, by the United Iron Works, a corporation, and the Yoder-Becker Company, a corporation, and an action was brought to enforce the lien of the Yoder-Becker Company. On or about May 23, 1914, said United Iron Works filed a suit in equity, as provided by the statutes of this state, in the circuit court of Newton county, to which all persons and parties claiming a lien or any kind of interest in said property were made defendants, and the action previously brought by the Yoder-Becker Company to establish its lien was consolidated with said equitable proceeding. On June 8, 1915, the United Iron Works, the plaintiff in said equity suit, dismissed its suit to establish its lien against the Sleepy Hollow Company, to which, as stated, all the other persons, including the Osceola Lead & Zinc Mining Company, claiming liens or any kind of interest in the controversy, were parties, and in the order of dismissal it was considered and adjudged "that the defendants go hence without day and have and recover of and from the plaintiff the costs of this action and that execution issue therefor." On June 10, 1915, two days later, plaintiff, the Forest Lumber Company, filed a motion to set aside the order of dismissal, presumably on the ground that the Forest Lumber Company had a right to have its lien enforced in the suit in equity, and that the dismissal of the case by the United Iron Works, as far as it was concerned, did not involve, necessarily, the dismissal of the case as an entirety, but that the other lienors had the right to have their liens established. This motion was sustained, the judgment of dismissal was set aside, and the suit in equity then went on to a judgment in favor of the Forest Lumber Company, the present plaintiff, enforcing its lien against the articles in controversy and giving the lien priority over the deed of trust under which the Osceola Lead & Zinc Mining Company, the defendant, had acquired title by purchase at the trustee's sale.

The present action, as stated before, was instituted by the Forest Lumber Company to recover from the defendant the damages suffered by the plaintiff in consequence of the removal of the property to Jasper county by the defendant while plaintiff held a lien against it, and while the suit was pending in which said lien was finally decreed to be prior in point of time to that of the deed of trust. The case went to trial in the circuit court of Jasper county, at Joplin, at the April term, 1916, and resulted in a judgment rendered May 22, 1916, in favor of the plaintiff for the sum of $895.45 damages,...