Hassett v. Rust

• Decision Date: 31 October 1876
• Citation: 64 Mo. 325
• Parties: W. H. HASSETT, et al., Respondents, v. J. D. RUST, et al., Appellants.
• Court: Missouri Supreme Court

64 Mo. 325

W. H. HASSETT, et al., Respondents,

v.J. D. RUST, et al., Appellants.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Howard County Circuit Court.

Geo. H. Shields, for Appellants, cited: Williams vs. Powers, 51 Mo. 441; Wagn. Stat. 910, § 9; 909, §§ 5, 8; Kerr vs. Mut. Ins. Co., 40 Mo. 19; Bowling vs. McFarland, 38 Mo. 365; Baker vs. Berry, 37 Mo. 306; Id. 603; Chambers vs. Carthel, 25 Mo. 374; and contended that under Wagn. Stat. 1020, § 38, the mere items of the account were all that were intended to be set forth when it permitted it to be filed.

Martin & Porter, for Respondents.

HENRY, Judge, delivered the opinion of the court.

Plaintiffs commenced their action in the circuit court of Randolph county against appellant and D. F. Kimmel, to enforce a mechanic's lien against the property described in the petition, alleging that Kimmel was an original contractor, employed by his co-defendants to build for them a dwelling house on the lots in question, and that the lumber and nails specified in the account were sold to Kimmel and used by him in the construction of said dwelling house; that on the 15th day of March, 1874, plaintiff filed with the clerk of the Randolph circuit court a just and true account of their claim, after all just credits had been given, with a true description of the property, etc.; that on the 25th of February, 1874, they gave Rust and Wonderly notice in writing of their intention to file a lien on said dwelling house, unless said debt were paid within ten days thereafter.

At the May term, 1874, of said court, on defendant's application, a change of venue was awarded to Howard county, and at the August term, 1874, of the Howard circuit court, Rust and Wonderly filed their answer, which denied the indebtedness of Kimmel to plaintiffs; denied that Kimmel was an original contractor with defendants to build the dwelling house; that the lumber and nails were used in the construction of said dwelling house; that plaintiffs gave them a written notice of their intention to file a lien, etc., and that on the 18th of March, 1874, plaintiffs filed with the clerk of the Randolph circuit court a just and true account, etc.

At the December term of said court, 1874, there was a trial of the cause, which resulted in a verdict for plaintiffs for one hundred and three dollars and sixty cents, and after motions for new trial and in arrest were overruled and judgment entered for plaintiffs, defendants Rust and Wonderly appealed from said judgment to this court.

Appellants insist upon the following points for reversal of the judgment: 1st, that the account filed with the clerk of the Randolph circuit court, in order to establish his lien, was not sworn to, and that the property sought to be charged with the lien was not described in the statement filed; 2d, that there were two original contractors, and but one of them was sued; 3d, that notice of intention to file the lien was not served by one authorized to serve it; 4th, that the court refused instructions to the jury declaring that the burden of proof of partnership of plaintiffs, and of ownership of the property by defendant, was on plaintiffs; 5th, that there is no averment in the petition where the items of the account sued on were furnished. We will notice these points in their order.

The notice served on defendant states the amount of the account, and the account is also attached to the notice, and specifies the materials and when furnished. To the notice plaintiffs made affidavit, and that notice also contains a description of the property to be charged with the lien. That notice, so sworn to, and a copy of the account attached, were filed with the clerk, and we think that this was a substantial compliance with the law.

In 55 Mo. 116, it was held, that in a suit against the owner, to enforce a mechanic's lien, it was not necessary to make both of the contractors parties to the suit. Judge Adams said: “The law requires the original contractor to be made a defendant. But where there are several joined in the contract one may be sued alone, and so one may be brought before the court in a suit on the lien. If the owners of the property desire the other joint contractors to be made defendants, the court may, in its discretion, have them brought in as defendants, if they are within its jurisdiction.”

This disposes of the second point. With regard to the service of the notice required by § 19 (Wagn. Stat. 911), the law does not provide how it shall be served, but we presume it might be served by any one who would be a competent witness, making affidavit to the service, or by any officer authorized to serve writs or other process of a court. The notice was served by a constable, and we think that this was a sufficient service.

The fourth complaint is, that the court refused instructions to the jury, declaring that the burden of proof was on plaintiffs to show their partnership, and...