Hammond v. Darlington

• Decision Date: 27 December 1904
• Parties: HAMMOND, Respondent, v. DARLINGTON, Appellant
• Court: Missouri Court of Appeals

84 S.W. 446

109 Mo.App. 333

HAMMOND, Respondent, v. DARLINGTON, Appellant

Court of Appeals of Missouri, St. Louis

December 27, 1904

Appeal from St. Louis City Circuit Court.--Hon. James R. Kinealy Judge.

AFFIRMED.

Judgment affirmed.

George D. Reynolds and George V. Reynolds for appellant.

(1) The judgment and all the proceedings before the justice of the peace in the lien case were improperly admitted in evidence--they were improperly in evidence for any purpose for these reasons: (a) neither Darlington nor either of his partners were parties to them; as to them it was res inter alios acta. Fire Clay Works v. Ellison, 30 Mo.App 67; Griffith v. Gilliam, 31 Mo.App. 38; State ex rel. v. Drew, 43 Mo.App. 368; Ins. Co. v. Hazeltine, 53 Mo.App. 308; Brass Mfg. Co. v. Boyce, 74 Mo.App. 353; Clark v. Brown, 25 Mo. 504; Crandall v. Cooper, 62 Mo. 478; Coe v. Ritter, 86 Mo. 277; Hicks v. Scofield, 121 Mo. 381, 25 S.W. 755; Russell v. Grant, 122 Mo. 161, 26 S.W. 958; Landau v. Cottrill, 159 Mo. 308; 60 S.W. 64. (b) The lien was established against ground in city block 4595; the evidence all showed that the lease-hold of defendant in the lien suit was on blocks 4595a and 4595b, which was where the improvements were, and respondent established no lien against improvements on these blocks. (c) There is no evidence in the case that the justice of the peace entered "an order on his docket requiring the plaintiff to give notice to such defendant, by four written or printed advertisements, set up at four public places in the county that a suit has been against the property, stating the amount claimed to be due," etc. R. S. 1899, sec. 3895. The only evidence of any docket entry by the justice is the recital in the notice signed by plaintiff, and that is not evidence of the fact of entry on the docket of the justice. No presumptions are indulged in as to regularity of proceedings before a justice of the peace. Ewing v. Donnelly, 20 Mo.App. 6; McQuoid v. Lane, 19 Mo.App. 153; Gideon v. Hughes, 21 Mo.App. 528. (2) The first instruction given at the instance of respondent told the jury if it found for plaintiff to "assess his damages at such amount not exceeding $ 499.35 as they shall find from the evidence that the structures torn down by defendant were reasonably worth at the time they were torn down." This was error. The measure of damage, if any, is the value of the structure or materials when and after removal, less cost of removal. R. S. 1899, secs. 4205 and 4206; amended acts 1901, p. 206; Seibel v. Siemon, 5 Mo.App. 303; s. c., 72 Mo. 526. (3) There was no evidence whatever in the case to show the value when removed or after removal, nor of cost of removal or tearing down. The improvements being on leased ground, if respondent had established a valid lien all he was entitled to was the right to remove them. Acts 1901, p. 206; amend. sec. 4206, R. S. 1899.

J. Hugo Grimm for respondent.

(1) A lien in favor of plaintiff attached to these improvements from the time he begun his work thereon. While it became necessary to file the lien and establish the same by suit as provided by statute, the lien nevertheless attached from the day the work was begun, and he had a proprietary interest in these improvements to the extent of the value of his work, labor and materials. Shine's Executor v. Heimburger, 60 Mo.App. 174; Paddock v. Stout, 121 Ill. 571; Gas Co. v. Lynam, 62 Ill.App. 538; Gaty v. Casey, 15 Ill. 189; Steigleman v. McBride, 17 Ill. 300; Smith v. Newbar, 144 Ind. 95; Bishop v. Honey, 34 Tex. 245; Freeman v. Carson, 27 Minn. 516; Milner v. Morris, 13 Minn. 455; Clark v. Parker, 58 Iowa 509; 20 Am. and Eng. Ency. of Law (2 Ed.) 506; State ex rel. v. Drew, 43 Mo.App. 365. (2) Since the right to a mechanic's lien can be established only by taking the steps required by the statute, and plaintiff alone did this, it follows that he is the only person who had a right to a mechanic's lien against this property. Hydraulic Press Brick Co. v. McTaggart, 76 Mo.App. 353; Ittner v. Hughes, 133 Mo. 679, 34 S.W. 1110; Uthoff v. Gerard, 42 Mo.App. 256. (3) Defendant took the conveyance of this property subject to plaintiff's lien. After satisfying that lien he was at liberty to do with the property as he pleased, but until that lien was satisfied plaintiff had the first right to the improvements. When defendant destroyed the property, he damaged the plaintiff to the extent of his claim of $ 499.35 against that property, as it was clearly worth more than that, and he must pay the damage. The proper remedy is an action at law in the nature of an action for conversion or trespass. Seibel v. Siemon, 52 Mo. 365; Seibel v. Siemon, 72 Mo. 526; Seibel v. Cornwell, 166 Mo. 51, 65 S.W. 971; McAdow v. Sturtevant, 41 Mo.App. 220. (4) It was not necessary to make defendant, Darlington, or his partners parties to the suit to enforce the mechanic's lien, because: (a) The alleged bill of sale or assignment contains no sufficient description of the property to be affected by it. R. S. 1899, secs. 923-925; Gatewood v. House, 65 Mo. 663; Land & Lumber Co. v. Franks, 156 Mo. 687, 57 S.W. 540. (b) The mortgage, if this instrument can be so designated as against third parties, is not one which, on the records, is prior to the lien and sought to be displaced by it. Coe v. Ritter, 86 Mo. 286; Ins. Co. v. Hazeltine, 53 Mo.App. 325. (5) It was not necessary to prove by the justice's docket that he had made an order of publication in this case. This appeared from his entry on the face of the summons. Sappington v. Lenz, 53 Mo.App. 44; Wise v. Loring, 54 Mo.App. 262. Indeed it would seem unnecessary that the entering of this order should be proven at all since the court must have found that an order of publication had been made and executed before it could hear the case. Shanklin v. Francis, 67 Mo.App. 469; Lingo v. Burford, 112 Mo. 149, 20 S.W. 459; Fulkerson v. Davenport, 70 Mo. 541; Baker v. Baker, 70 Mo. 136; Leonard v. Sparks, 117 Mo. 103, 22 S.W. 899. (6) The court properly told the jury that defendant could not by taking an assignment of the lease from Boshgaotur deprive plaintiff of his right of lien. Douglas v. Zinc Co., 56 Mo. 399. (7) The description of the property in the lien papers and in the petition was sufficient. DeWitt v. Smith, 63 Mo. 264. (8) The instruction on the measure of damages was correct. Spencer v. Vance, 57 Mo. 427; Nieswanger v. Squier, 73 Mo. 182.

REYBURN, J. Bland, P. J., concurs; Goode, J., absent.

OPINION

REYBURN, J.

This action was commenced before a justice of the peace upon the following declaration of right of action:

"Plaintiff states that defendants, Evans R. Darlington, James G Berryhill and S. L. Berryhill, were at the times hereinafter mentioned, copartners, doing business under the name and style of E. R. Darlington & Co., and being engaged in the lumber business in the city of St. Louis, Missouri.

"Plaintiff states that between the twelfth day of April, 1902, and the twenty-fourth day of May, 1902, plaintiff was a carpenter and builder, did perform certain work and labor upon a certain theatre building, twelve booths, stable, ticket office, fences and seats at the request of one Carrigien Boshgaotur, who was lessee thereof, upon the following described lot of ground in the city of St. Louis, to-wit:

"A lot or tract of ground in city block No. 4595 of the city of St. Louis, fronting 140 feet more or less, on Clayton avenue, by a depth of 120 feet more or less, said lot being the southeast corner of said city block and fronting on the north line of Clayton avenue, between Tamm avenue and Kraft avenue.

"Plaintiff further states that he furnished all the work and labor on said theatre, booths, stable, ticket office, fences and seats, and that under the laws of the State of Missouri, he became entitled to a mechanic's lien upon said improvements for the work and labor done by him; that the work and labor done by him upon said improvements as aforesaid, were reasonably worth the sum of $ 652.35; that there had been paid thereon the sum of $ 75, leaving due plaintiff a balance of $ 577.35, for which he filed a lien in the office of the clerk of the circuit court of the city of St. Louis, and on the twenty-sixth day of August, 1902, and thereafter, on August 27, 1902, brought his suit to establish said lien to the extent of $ 499.35, before Robert Walker, Esq., a justice of the peace of the city of St. Louis, Missouri, and that said suit to establish said mechanic's lien was duly tried and heard before said Robert Walker, Esq, who did on the twenty-second day of October, 1902, render judgment in said cause establishing said lien for the sum of $ 499.35.

"Plaintiff further states that defendants Evans R Darlington, J. G. Berryhill and S. L. Berryhill, furnished a portion of the lumber which was used in the construction of the theatre booths and improvements above described, and was aware of the fact that plaintiff had furnished work and labor in the construction of said improvements and was entitled to a lien upon the same for the value of his work and labor. But plaintiff states that defendants Evans R. Darlington, J. G. Berryhill and S. L. Berryhill, disregarding his right and interest in the said improvements after they were erected and before plaintiff had established his lien against the same, did unlawfully cause the same to be taken apart and removed, taking said lumber into their possession, and thus entirely destroying the buildings upon which plaintiff had a right of lien as aforesaid. Plaintiff further states that said improvements were reasonably worth the sum of $ 1,000, and that as plaintiff was the only person who established his right of lien against said improvements, the same were ample security for...