Hennis v. Tucker

• Decision Date: 21 October 1969
• Docket Number: Nos. 33294,33295,s. 33294
• Citation: 447 S.W.2d 580
• Parties: Danny HENNIS, a Minor, by Next Friend, F. C. Hennis, Plaintiff-Appellant, v. Fred L. TUCKER, W. F. S. Hopmeier, L. M. Chamberlin, L. L. Seeman, Allen Knaup, Defendants, Mortgage Syndicate, Inc., Defendant-Respondent, David Loeffelman, a Minor, by Next Friend, Allen Loeffelman, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 580

447 S.W.2d 580

Danny HENNIS, a Minor, by Next Friend, F. C. Hennis Plaintiff-Appellant, v. Fred L. TUCKER, W. F. S. Hopmeier, L. M. Chamberlin, L. L Seeman, Allen Knaup, Defendants Mortgage Syndicate, Inc., Defendant-Respondent David Loeffelman, a Minor, by Next Friend, Allen Loeffelman, Defendant-Appellant.

Nos. 33294, 33295.

St. Louis Court of Appeals, Missouri.

Oct. 21, 1969.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 18, 1969.

William R. O'Toole, St. Louis, for defendant-appellant.

Barksdale, Abbott, Adams & Wallace, Clayton, for defendant-respondent.

DOWD, Judge.

This is an action to recover for labor and to enforce a mechanic's lien against real estate by plaintiff Danny Hennis and cross-claimants Allen Knaup and David Loeffelman. Plaintiff and cross-claimants entered into a contract with defendant Fred L. Tucker, then the owner of the real estate, to perform labor at a rate of $2.50 per hour in the construction of a house. Plaintiff and Loeffelman claimed that Tucker was indebted to each of them in the amount of $1,568.75. Defendant Mortgage Syndicate, Inc. had a note and deed of trust against the property in the amount of $9,544.00, and subsequently foreclosed and bought in the property in May, 1966 and are the owners of the property.

The plaintiff and the cross-claimants testified in detail concerning the agreement with Tucker and the work performed and the amounts owed to them by Tucker. Hennis and Loeffelman each received a check dated August 4, 1965 for $200.00 from Tucker and issued by Mortgage Syndicate, Inc., and Knaup received a check for $100.00 dated August 4, 1965 from the same company. Hennis received an additional $50.00 from Tucker in October, 1965. Loeffelman received a check for $200.00 from Tucker on December 22, 1965 which was to be equally divided with Hennis, but this check was returned from the bank because of insufficient funds.

Hill-Behan Lumber Company and Bayless Building Material Company which furnished materials for the job, entered their appearance in the cause and filed liens against the property in the amount of $3,225.16 and $425.92. These claims were dismissed by stipulation with Mortgage Syndicate, Inc. before trial.

Upon submission of the case to the court, the court dismissed the claims of plaintiff and cross-claimants as against defendant Mortgage Syndicate, Inc. finding '* * * that the Plaintiff's and Cross-Claimants' claims are barred by the Statute of Limitations (Vernon's Annotated Missouri Statutes 429.170) as against defendant Mortgage Syndicate, Inc., its trustee and Successor Trustee, in that the record shows affirmatively that the Claimants have failed to prosecute their claims without unnecessary delay.'

Plaintiff and cross-claimant Loeffelman appealed. Knaup has dismissed his appeal. The same attorney represents plaintiff and cross-claimant Loeffelman.

The issue here is whether the claimants failed to prosecute their claims without unnecessary delay and are therefore barred by Section 429.170 V.A.M.S.

This section dealing with mechanic's lien requires that the action to enforce a lien be 'commenced' within six months after filing the lien and prosecuted without unnecessary delay to final judgment.

The facts relative to this issue are that the appellants' lien statements were filed in the office of the Circuit Court of Jefferson County on January 12, 1966. Plaintiff filed suit in the Circuit Court of Jefferson County on June 28, 1966, and summons was issued the same day for defendant Tucker. A 'non-est' return on this summons was made by the sheriff of St. Louis County and the summons was returned to the Jefferson County Circuit Clerk on July 11, 1966. An alias summons on plaintiff's petition was issued for the defendant Tucker on February 23, 1967, and was returned by the sheriff of St. Louis County 'non-est' on February 28, 1967. Three other summonses were issued for Tucker by the other cross-claimants which were also returned 'non-est.' Plaintiff filed an affidavit for service by publication on plaintiff's petition against Tucker in the Circuit Court of Jefferson County on June 23, 1967, and service by publication was thereafter effected.

Loeffelman's cross-claim was filed in Circuit Court of Jefferson County on July 11, 1966, and a summons issued the same day for the defendant Tucker and that summons was returned by the sheriff of St. Louis County 'non-est' on August 15, 1966. It is stipulated in the record that no further summons was issued for defendant Tucker on defendant Loeffelman's cross-claim. The plaintiff's publication against Tucker referred only to the 'aforesaid petition' and made no reference to the cross-claim of Loeffelman. However, Loeffelman contends that the publication sued out by the plaintiff was sufficient for the whole case and that he was entitled to the benefit of it. Respondent opposes this contention. Our decision on plaintiff's claim will render unnecessary our ruling on this point.

The attorney for the claimants testified that he thought it was necessary that Tucker be served personally and testified about his efforts to locate Tucker. He talked to Tucker's mother and on January 10, 1967, he wrote the Department of Revenue asking for the name and address of a certain automobile license plate holder supposedly issued to a 1967 Buick. The ilcense was not issued to Tucker. He advised the sheriff of St. Louis County by letter on February 27, 1967 that Tucker was employed at Monsanto Company and gave the sheriff an address for Tucker.

Both plaintiff and cross-claimants testified that they had seen Tucker at various times in St. Louis County before and after the filing of the suit. Plaintiff obtained his automobile license number and gave it to his attorney. Plaintiff went to an address in St. Louis County and talked to Tucker's mother in an attempt to locate him. Loeffelman was informed by the personnel department of Monsanto Company that a Fred L. Tucker was employed by that company.

Section 429.190 V.A.M.S. which deals with mechanic's lien provides: 'In all suits under sections 429.010 to 429.340 the parties to the contract shall, * * * be made parties, * * *.' Thus, this section made it mandatory that Tucker, who made the contract with plaintiff and cross-claimant Loeffelman, be made a party to this suit in order to invoke the provisions of the mechanic's lien law.

It is clear that the actions here were 'commenced' within the six month statute. According to our practice, an action is commenced by the filing of a petition and the issuance of a summons. Civil Rule 53.01 V.A.M.R. Upon the filing of the petition the clerk then issues forthwith the original summons. Additional summoneses are only issued at the request of the plaintiff. Civil Rule 54.01 V.A.M.R. The filing of a petition and issuance of a summons is but a conditional halting of the statute of limitations, and unless a plaintiff thereafter exercises due diligence in obtaining service of process the statute continues to run. Emanuel v. Richards, Mo.App., 426 S.W.2d 716, 718. Plaintiff filed suit five months and sixteen days after...