Hoover v. Abell

• Decision Date: 08 May 1950
• Docket Number: No. 21266,21266
• Citation: 231 S.W.2d 217
• Parties: HOOVER v. ABELL et al.
• Court: Missouri Court of Appeals

Page 217

231 S.W.2d 217

HOOVER v. ABELL et al.

No. 21266.

Kansas City Court of Appeals, Missouri.

May 8, 1950.

Guy W. Runnion, C. W. Prince, Wm. Dennis Bush, all of Kansas City, for appellant.

Hall DeWeese, Kansas City, George V. Aylward, Kansas City, for respondent John W. Hoover.

BOUR, Commissioner.

This is an appeal from a judgment of the circuit court of Jackson County, Missouri, establishing a mechanic's lien in favor of respondent John W. Hoover against certain property of appellant Beulah M. Abell, and declaring the mechanic's lien to be prior and superior to a deed of trust on the property.

The record shows that on November 12, 1947, and prior to the filing of the mechanic's lien suit mentioned above, an action was instituted by Mrs. Beulah M. Abell in the circuit court of Jackson County, at Kansas City, against John W. Hoover and R. C. Henschell. The petition in that case alleged that on or about January 28, 1947, the defendants there in entered into a written contract with the plaintiff to furnish the labor and materials for making certain repairs on a house owned by plaintiff and located in Kansas City, Missouri, and that plaintiff agreed to pay defendants the sum of $1059.00 for such labor and materials. The petition then alleged that plaintiff paid defendants the sum of $709.50, but that they had not complied with the terms of the contract in that they had furnished defective materials and performed the work in an unskillful and unworkmanlike manner; that defendants refused to complete all of the repair work; and that such conduct of defendants was in wanton disregard of plaintiff's rights. The petition prayed for $750.00 actual damages and $2500.00 punitive damages. Hoover was served with summons in this case on November 12, 1947. After obtaining two orders extending the time for filing his pleadings, Hoover filed his separate answer and counterclaim on January 20, 1948. We do not deem it necessary to summarize Hoover's answer and counterclaim. It is sufficient to say that his counterclaim did not assert a mechanic's lien against the property of Mrs. Abell mentioned above, nor was it based on the written contracts involved in the mechanic's lien suit which is before this court on appeal. Henschell is not a party to the mechanic's lien suit, and the pleadings which he filed as a defendant in the case under discussion are not material to any of the questions before us. For convenience and brevity, this action will be referred to hereinafter as 'the damage suit.'

On January 19, 1948, the day before Hoover filed his answer and counterclaim as a defendant in the damage suit, he filed an action to enforce a mechanic's lien before Louis J. Mazuch, Magistrate of the First District, Jackson County, Missouri, wherein Mrs. Beulah M. Abell, the plaintiff in the damage suit, Sam B. Sebree, Trustee, and Home Federal Savings and Loan Association of Kansas City, were joined as defendants. Hoover's claim in this suit was for work done and materials furnished in making certain repairs on the house owned by Mrs. Abell and located in Kansas City, Missouri; said property being the same as that involved in the damage suit filed by Mrs. Abell in the circuit court. The petition in the mechanic's lien suit alleged that the repairs were made by Hoover under two written contracts dated January 28, 1947, and February 10, 1947, between Hoover and Mrs. Abell; that upon completion of the work on May 12, 1947, and the refusal of Mrs. Abell to pay the balance of $439.00 due under the contracts, Hoover duly filed his mechanic's lien on October 24, 1947, and that on January 17, 1948, he gave notice of intention to file suit to enforce said lien and duly filed said notice. The petition also alleged that on or about March 7, 1947, Mrs. Abell executed and delivered a deed of trust on the real estate aforesaid to defendant Sam B. Sebree, Trustee for defendant Home Federal Savings and Loan Association of Kansas City, to secure the payment of a note for $3750.00; that the building repairs were commenced about January 28, 1947, and prior to the execution and delivery of the deed of trust. The petition asked for judgment against Mrs. Abell in the sum of $439.00, with interest and cost of suit, and for the enforcement of such judgment as a special lien against the property aforesaid; and that the same be declared to be a first lien, prior and superior to the lien of the deed of trust.

Mrs. Abell filed in the magistrate court her answer and motion to dismiss. The trustee and cestui que trust in the deed of trust filed no pleadings. The motion to dismiss was overruled and a trial before the magistrate resulted in a personal judgment for $439.00 and costs against Mrs. Abell and a mechanic's lien on the property described in the petition, with a finding that the mechanic's lien was prior to the lien of the deed of trust. Mrs. Abell, alone, appealed to the circuit court of Jackson County, at Kansas City, where the cause was listed for trial and assigned to Division 2. Thereafter, Mrs. Abell filed a motion to dismiss, and, in the alternative, to strike the cause from the listing, which motion was overruled. A trial de novo before the court alone resulted in a judgment in favor of Hoover, identical with the judgment of the magistrate court. Mrs. Abell's motion for a new trial was overruled, and she has appealed to this court.

Mrs. Abell's first point is that the circuit court erred in overruling her motion to dismiss. The grounds alleged in the motion are that the mechanic's lien claim arose out of the transaction or occurrences that is the subject matter of Mrs. Abell's claim, as plaintiff, in the damage suit pending in the circuit court against Hoover and Henschell; that said damage suit was pending at the time Hoover filed the mechanic's lien suit in the magistrate court; that Hoover did not assert his mechanic's lien as a counterclaim in the damage suit as he was required to do by section 73 of the Civil Code, Laws 1943, p. 377, Mo.R.S.A. Sec. 847.73, and, therefore, that his lien claim was barred, and the magistrate court, and the circuit court on appeal, had no jurisdiction over the independent action to enforce the lien. The same question was raised by the motion to dismiss filed in the magistrate court. Section 73 of the Civil Code provides:

'A pleading shall state as a counterclaim any claim, not the subject of a pending action, which at the time of finding the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrences that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.'

As heretofore stated, the damage suit was filed on November 12, 1947, and Hoover was served with summons on the same day. On January 19, 1948, Hoover commenced suit in the magistrate court to enforce his lien claim, and on the following day he filed his pleading in the damage suit. Hoover does not deny that his lien claim arose out of 'the transaction or occurrences that is the subject matter' of the damage suit. He does contend, however, that he was not required by section 73 of the Civil Code to plead as a counterclaim in the damage suit the same matters pleaded in the mechanic's lien suit, because the latter suit was pending at the time he filed his answer to the damage suit. Mrs. Abell contends that when a person is sued, he may not thereafter, and before filing his answer, file an independent action against the plaintiff based upon a claim arising out of the transaction or occurrences that is the subject of the plaintiff's suit, because the phrase, of section 73, 'not the subject of a pending action' is 'intended to mean not already the subject of a pending action, and the pending action must refer to an action already pending when the suit was filed.' Counsel have cited no case, and we have found none, involving the exact point. However, we do not believe that the language used by the legislature in section 73 warrants or is open to the construction contended for by Mrs. Abell. The language is: 'A pleading shall state as a counterclaim any claim, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party * * *.' Even if this section requires a pleader to set up as a counterclaim any mechanic's lien claim which he has against any opposing party (if it is within the other provisions of the section) or be forever barred from later maintaining an independent action thereon, our view is that the language just quoted does not apply to the present facts, because Hoover's lien claim was 'the subject of a pending action' in the magistrate court 'at the time of filing the pleading,' namely, the pleading filed by Hoover in the damage suit. For this reason, if no other, Hoover was not required to assert the mechanic's lien claim as a counterclaim in the damage suit, and his failure to do so did not bar its assertion in the magistrate court.

Section 73 of our Civil Code is identical with Federal Rule 13(a), as originally drafted. The original federal rule was amended on December 27, 1946, effective March 19, 1948, by striking out the phrase 'not the subject of a pending action' and adding a clause at the end of the subdivision which reads, 'except that such a claim need not be so stated (i. e., as a counterclaim) if at the time the action was commenced the claim was the subject of another pending action.' 28 U.S.C.A. The Federal Advisory Committee on Amendments to Rules, in a note under Rule 13(a), states: 'The rewording of the subdivision in this respect insures against an undesirable possibility presented under the original rule whereby a party having a claim which would be the subject of a compulsory counterclaim could avoid stating it as such by bringing an independent action in another court after the commencement of the...