Gaty v. Brown

• Decision Date: 31 October 1847
• Citation: 11 Mo. 138
• Court: Missouri Supreme Court
• Parties: GATY, MCCUNE & GLASBY v. BROWN ET AL.

11 Mo. 138

GATY, MCCUNE & GLASBY

v.BROWN ET AL.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

On the 31st August, 1846, a scire facias issued from the clerk's office of the St. Louis Court of Common Pleas on a mechanic's lien, setting forth that the plaintiffs, Gaty McCune & Glasby, had furnished materials for the building, edifice and improvements therein described, and done work and labor upon the same, and that on the 24th December, 1845, they filed in the office of the clerk of the Circuit Court of St. Louis county (wherein said building, edifice and improvements were situate), and within six months after their demand had accrued, a just and true account of their said demand after all just credits given, which amount and demand accrued on account of said materials furnished by them for said building and edifice and improvements and used in and about and upon the same under contract with Josiah Brown, owner and proprietor of said building, edifice and improvements at the time of furnishing said materials, and for work and labor by them done in and upon said building, edifice and improvements under contract as aforesaid with said Brown, owner and proprietor, and which demand was verified by affidavit of one of said plaintiffs, Glasby, the amount whereof due after all just credits and set-offs, was $161 75-100; that said materials were furnished and work done at the request of said Brown; that said plaintiffs at same time filed in said office of the clerk of the Circuit Court, a correct description of the property to be charged with said lien. The scire facias alleged that Brown was the owner of the said building and edifice and improvements, at the time said demand accrued and had since conveyed them to the said Isaac H. and Thomas L. Sturgeon, whose property and in whose possession they were at the date of said scire facias.

The writ was served on Brown and one of the Sturgeons; when all the defendants appeared by attorney and demurred generally. The defendants' attorney afterwards “asked leave to withdraw the demurrer and file a motion to quash the writ,” which was granted by the court, and under said leave said demurrer was withdrawn, and said motion to quash filed simultaneously.

SPALDING & TIFFANY, for Plaintiffs.

1. The Common Pleas did have jurisdiction of the cause of action in this case, and by law had the power to proceed by scire facias on the lien. Rev. Code of 1845, p. 315, § 2, gives to the Common Pleas concurrent original jurisdiction in all civil actions at law with the Circuit Court. Ibid, p. 316, § 8, that process and proceedings to be the same as in Circuit Court. Ibid, p. 315, §§ 3, 4, provide for a change of venue from Common Pleas to Circuit Court, and from Circuit Court to Common Pleas; and there can be no change of venue from Circuit Court for the reasons therein set forth, in any civil suit except to Common Pleas. Ibid, § 20, p. 317, the judge of the Common Pleas shall have like powers in relation to suits in said court as judge of Circuit Court.

2. This suit is a civil action. 1 Tomlin's Law Dict. 28; 2 Inst., 61, 40, civil actions are such as tend only to the recovery of that which by reason of any contract, tort or wrong of another is due to us. It is therefore embraced within the provision of the act giving jurisdiction to the Common Pleas. It is within the very words.

3. The act on the subject of liens in force at the time this lien was filed and suit brought, were the act of February 24, 1843, and p. 84 of Sess. acts of 1842-3, and the act in Rev. Code of 1845, p. 733.

4. There is nothing to prevent proceeding by scire facias in the Common Pleas. 2 Tidd 982; 6 Bac. Abr. 102-3-4, as to nature of scire facias; as at common law, that it issued only on records.

5. By statutory provisions, scire facias is used for other purposes than according to its original use, and on other basis than a record. In Indiana, 1 Blackf. 118, 137, 329. In Illinois, Breese, 122; Illinois Rev. Code of 1833, p 376, § 18. Thus, scire facias is used to foreclose mortgages, &c.

6. It is thus directed by statute to be used here, as the lien or account filed with the clerk is no record. The clerk of that court is made the depositary of it as a matter of convenience; and the lien act provides that a suit may be brought on it, in certain cases by scire facias. In this instance, as in the States of Indiana, Illinois, &c., in the case of mortgages, the scire facias is the statutory mode of suing, that is, the action is commenced by a writ so styled; but such writ does not issue on a judicial or any other record. The lien as filed is no more a judicial record than the recorder's books were, while the clerk of the Circuit Court was recorder. The Assembly considered the writ of scire facias a convenient one in form to be used for this purpose. It commands the sheriff substantially to cause the defendant to be notified, &c. It is perfectly competent for the Legislature to use this writ in all cases where notice is to be given. There is no rule of common law so unbending that this writ cannot be used in any case to which the Legislature apply it, and there is no difficulty in so using it. The cases of judgments on liens (composing a part of the record in Page v. Hill, just argued), were tried in St. Charles on liens filed in St. Louis county. What difficulty was there in trying and rendering the judgment in it? A certified copy of the lien had to be produced there; and so it would have to be in the Common Pleas; or as the clerks' offices and courts are all in the same building, the original lien book could be produced and the files of the lien in whichever court the suit is in; and this is the actual practice there. The clerk of the Circuit Court or deputy attends with the books and papers in the Common Pleas whenever notified.

RANNELLS, for Defendants.

1. The scire facias was properly quashed by the court. The Court of Common Pleas had no jurisdiction. Statute of 1843, § 8, p. 84, requires actions under the act to be brought in Circuit Court. Record of lien is in the Circuit Court...