Hill v. Chowning, Scott & Company

• Decision Date: 07 April 1902
• Parties: CHAS. E. HILL, Appellant, v. CHOWNING, SCOTT & COMPANY, Respondents
• Court: Kansas Court of Appeals

67 S.W. 750

93 Mo.App. 620

CHAS. E. HILL, Appellant, v. CHOWNING, SCOTT & COMPANY, Respondents

Court of Appeals of Missouri, Kansas City

April 7, 1902

Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

H. T Herndon and Meservey, Pierce & German for appellant.

(1) The action for the enforcement of a mechanic's lien was to enforce a different demand and upon another form of relief therefore, it is not a bar to this action. Wells on Res Adjudicata and Stare Decisis, sec. 282; 1 Herman on Estoppel and Res Adjudicata, p. 299; State ex rel. v. James, 82 Mo. 509; Winham v. Kline, 77 Mo.App. 47; Baker v. Lane, 137 Mo. 682; 21 Am. and Eng. Ency. of Law, p. 227. Davis v. Barber, 51 F. 148. (2) While there are no decisions in Missouri sustaining plaintiffs' right to the enforcement of a lien under such circumstances there are abundant authorities in other States. Davis v. Colusa, 55 Ill.App. 591; Davis v. Vice, 15 Ind.App. 117; Waddy v. Davis (Ky.), 45 S.W. 895; Chicago Building Co. v. Tolbertson (Ga.), 31 S.E. 809; Hines v. Chicago Building Co. (Ala.), 22 So. 160. (3) A suit for the enforcement of a mechanic's lien is a cumulative remedy and does not bar a subsequent action on the contract. Phillips on Mechanics' Liens, secs. 311, 312. Clark v. Blair, 14 F. 812; Tabor v. The Cerro Gordo, 54 F. 391; Ramsbottom v. Bailey, 56 P. 1036, 124 Cal. 259; Lieb v. Lichtenstein, 121 Ind. 483; State ex rel. v. James, 82 Mo. 509; Winham v. Kline, 77 Mo.App. 47; Railroad v. Traube, 59 Mo. 355; R. S. 1899, sec. 4215.

F. B. Ellis for respondent.

(1) The plaintiff had two remedies; he could sue on the contract to enforce his lien and having sued to enforce the lien, he can not now bring the suit upon the same contract which was the basis of his suit for the lien. A judgment rendered on that contract will bar this action provided that all of the parties were parties to that action. A judgment upon a contract for the erection of a building is conclusive upon that contract. Dempsey v. Schawacker, 140 Mo. 680; State ex rel. v. Branch, 134 Mo. 592. (2) When the effect of a judgment is to decide a particular issue of fact, that issue must be held res adjudicata, as to the parties then before the court. And it is immaterial in what form that issue was raised, if it was decided between the adversary parties upon its merits. Young v. Byrd, 124 Mo. 590; Nave v. Adams, 107 Mo. 415; Farley v. Cammann, 43 Mo.App. 168; McFall v. Dempsey, 43 Mo.App. 369. (3) Yet the mere fact that the judgment is irregular will not exclude it as a bar to another suit upon the same cause of action and between the same parties. State v. Wear, 145 Mo. 162; Lovitt v. Russell, 138 Mo. 474.

OPINION

BROADDUS, J.

On the twenty-second day of December, 1897, the plaintiff and one F. J. MacNish as partners agreed with a number of persons at Lathrop, Missouri, for a consideration of $ 3,150, to erect for them a creamery at said place. The contract was in writing, to which are subscribed the names of the persons who were interested in the said creamery. By the terms of the contract each subscriber bound himself for only so much of the price to be paid to the plaintiff as was set opposite his name, the contract in that respect being several. The defendants herein bound themselves to pay the sum of one hundred dollars. The contract for the erection of the creamery was complied with by the plaintiff and his partner, MacNish; but as a part of the subscribers to the fund failed to pay according to their agreement, the plaintiffs as contractors for the erection of the creamery brought suit to enforce a mechanic's lien against the interest of those not so paying their subscriptions, amongst which were the defendants. In the suit thus brought, the defendants, with all the other subscribers to said enterprise, were made parties, and it appears that the defendants made default and judgment was rendered by the court in which it was found that there was still due the plaintiffs therein with interest the sum of $ 814.38, and subjecting the interest of all the defaulting subscribers, including the defendants herein, to plaintiffs' lien; but no personal judgment was rendered against any of them.

Personal service of notice of the suit was had against the defendants in said suit, but they did not contest the plaintiffs' right to a judgment, being in default. That part of the judgment pertinent to the inquiry before us is as follows: "It is therefore ordered, adjudged and decreed that plaintiffs have and recover the sum of $ 814.38, being the principal and interest of the balance due on said contract, with interest at the rate of six per cent per annum from this date and costs of suit, the same to be levied out of the following described real estate, to-wit (describing the property), together with the buildings and improvements thereon located and the appurtenances thereto belonging, and that execution issue therefor." A special execution was issued on said judgment, as directed therein, and the interests of the said defaulting subscribers sold, but the same was returned wholly unsatisfied, the sale resulting in proceeds sufficient only to pay the costs incurred in making the sale.

The plaintiff, as assignee of the said partnership of himself and said MacNish, brings this suit against the defendants for the amount of their subscription, and defendants set up said suit to enforce said mechanic's lien as a bar to plaintiff's right to recover. The court found for the defendants and plaintiff appealed.

The contention of the appellant is that the facts did not show that his claim had been adjudicated in the former suit to establish a mechanic's lien, as there was no personal judgment rendered therein against the defendants. Among other reasons given, it is asserted that a personal judgment could not have been rendered in that case for the supposed reason, we may assume, that the various defendants were not jointly bound as their obligations were several.

It is true, that had plaintiffs sued to obtain a simple judgment disconnected with any attempt to enforce their mechanic's lien, there would have been a misjoinder both of parties and causes of action. But the reason will not hold good if the question is considered with reference to the object of the suit, which was to enforce a mechanic's lien. While it is true that each defendant was liable only for the amount he subscribed to the enterprise, and his interest in the property was proportionate to the amount of his subscription, yet plaintiff's lien was indivisible and included the whole property. And such being the case, no judgment could have been rendered against any one of the defendants for the whole amount due from the several subscribers and none could have been rendered against any one of the defendants for any specified amount of work done or materials furnished by reason of the indivisibility of the lien. But we hold that if the plaintiffs were entitled to a lien, which is not...