Hiller v. Schulte

• Citation: 184 Mo. App. 42,167 S.W. 461
• Decision Date: 31 December 1913
• Docket Number: No. 13292.,13292.
• Parties: HILLER v. SCHULTE et al.
• Court: Court of Appeal of Missouri (US)

167 S.W. 461

184 Mo. A. 42

HILLER v. SCHULTE et al.

No. 13292.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

Rehearing Denied June 6, 1914.

1. LIMITATION OF ACTIONS (§ 124)—COMMENCEMENT OF ACTION—PARTIES JOINED BY AMENDMENT.

Where parties are brought in by amendment, the suit as to them is begun at the time the amendment is filed.

2. LIMITATION OF ACTIONS (§ 124)—MECHANICS' LIENS—ENFORCEMENT—NEW PARTIES.

In a suit to enforce a mechanic's lien, new parties defendant cannot be brought in by amendment so as to affect their rights after the expiration of 90 days from the filing of the lien.

3. LIMITATION OF ACTIONS (§ 124)—COMMENCEMENT OF ACTION—TIME—JOINING PARTIES BY AMENDMENT.

The rule that the filing of a petition is the commencement of an action, and that subsequent amendments properly made relate to the institution of the suit, is applicable only to the defendants originally sued, and not to parties brought in by such amendment.

4. LIMITATION OF ACTIONS (§ 124)—MECHANICS' LEINS—ENFORCEMENT—PARTIES.

Where defendant D. became the owner of one of several houses against which a mechanic's lien was sought to be enforced for the furnishing of materials and labor in the construction of furnaces therein, prior to the time the materials were furnished, and the work done, and she was not made a party to the suit to enforce the lien until more than 90 days after the filing thereof, it could not be enforced against her property.

5. MECHANICS' LIENS (§ 260)—VALIDITY— ENFORCEMENT—SEPARATE PROPERTY.

Where plaintiff filed a blanket lien against several houses for labor and materials in constructing certain furnaces therein, all the materials furnished and all of the labor done on all the houses being included in one general lien account, with no attempt to separate the labor and materials furnished for and used in the different houses, and plaintiff was not entitled to a lien for the work and materials furnished for one of the houses which had previously been sold to defendant D., the lien was unenforceable in toto.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Charles Hiller against Louis C. Schulte and others. Judgment for plaintiff, and defendants appeal. Reversed, without remand.

Wm. L. Igoe and R. M. Nichols, both of St. Louis, for appellants. H. D. McCorkle, of St. Louis, for respondent.

ALLEN, J.

This is an action to enforce a mechanic's lien for work and labor done and materials furnished for and upon 13 two-story brick buildings, and the lots of ground upon which they are situated, located in the city of St. Louis. The lien statement was filed on June 16, 1906, and states that the work and labor done and materials furnished, as shown by the account therein set forth, were furnished by the said lienor under contract with defendant Louis C. Schulte. The account itself runs against "Louis C. Schulte (M. P. Hynson, agent)," and is for certain furnaces and pipes and other accessories pertaining thereto, and for certain work and labor done in and about installing all of the same.

Eleven of the buildings in question are upon contiguous lots fronting on Etzel avenue in the city of St. Louis, and two thereof upon adjacent lots fronting upon Clara avenue, and separated from the others by a private alley.

On September 13, 1906, plaintiff instituted this action to enforce the lien. In his petition filed at said time plaintiff named as defendants Louis C. Schulte, Montrose P. Hynson, W. M. McDade, F. W. Lovett, Chas. C. Nichols, trustee, and Frank C. Burdett. The original petition does not appear in the record. Subsequent to the institution of the suit, Hynson was adjudged a bankrupt, and on February 19, 1909, plaintiff filed what is designated as a "statement of parties in interest," and asked leave to make certain other persons defendants. The court granted this request, and on March 17, 1909, plaintiff filed an amended petition naming, in addition to the original defendants, the other parties as defendants in the cause, viz.: Wm. R. Orthwein, trustee in bankruptcy of M. P. Hynson, and certain other persons who were described in the amended petition as persons to whom portions of the property had been conveyed, or who held deeds of trust thereon. The amended petition avers that at the dates of furnishing the materials and labor in question defendant Schulte held title to the property, but held it in fact in trust for Hynson, to whom it in reality belonged.

On behalf of all the parties who were made defendants on March 17, 1909, excepting defendant Florence M. Dale, demurrers were filed, upon the ground that they were made parties within 90 days after the filing of the lien, and also, as to a part of them, that they were neither necessary nor proper parties defendant, having purchased after the filing of the lien. These demurrers were overruled. Florence M. Dale, who was made a party defendant by the amendment, filed a motion to dismiss as to her, for the reason that it appeared from the record that the suit had not been instituted against her within the time required by law. This motion was also overruled. And as to the parties made defendant on March 17, 1909, the answers filed set up that the suit was not instituted against these defendants within the period allowed by statute in which to institute an action for the enforcement of a mechanic's lien after the filing of the same.

The cause was referred to Benj. J. Klene, of the St. Louis bar, to try all of the issues. The referee duly heard the testimony and filed his report in the cause, wherein he made a very complete finding of facts, and recommended a judgment sustaining the lien. The court overruled the exceptions filed to the referee's report, and the case is here upon defendants' appeal.

In the view which we take of the case, it is unnecessary for us to set out the rather lengthy findings of the referee; but we shall confine ourselves to such of the facts as are essential to the determination of the case as we view it.

On October 12, 1904, Schulte, who then held the title to the property, conveyed the various lots, described in plaintiff's petition, by separate deeds of trust, to Chas. C. Nichols, as trustee for Fred W. Lovett, to secure certain promissory notes. Thereafter the said buildings were erected on the various lots, and on June 2, 1905, defendant Schulte conveyed to Florence M. Dale one of these lots, with the house and other improvements thereon, subject to one of the aforesaid deeds of trust. At the time that defendant Florence M. Dale acquired this house, no furnace had been installed therein, and it appears that Hynson, for whom Schulte held the title, and who really owned the property, agreed with Mrs. Dale that a furnace would be provided and installed in it. Later this was done, at or about the time when the furnaces were installed in the other buildings, to wit, about November, 1905.

It is perfectly clear that the suit was not begun as to Florence M. Dale within 90 days after the filing of the lien as required by section 8228, Rev. St. 1909. The action was instituted within the prescribed 90 days, to wit, on September 13, 1906; but Florence M. Dale was not made a party thereto until March...