Huggins v. Hill

• Decision Date: 30 December 1921
• Docket Number: 20117
• Parties: George W. Huggins, Appellant, v. Lena G. Hill et al., Respondents
• Court: Missouri Supreme Court

236 S.W. 1054

George W. Huggins, Appellant, v. Lena G. Hill et al., Respondents

No. 20117

Supreme Court of Missouri, En Banc

December 30, 1921

Reversed and remanded.

Conway Elder, Judge. All concur.

OPINION

Conway Elder, J.

This action is companion to the case of George W. Huggins respondent, vs. Lena G. Hill et al., appellants, decided by this court en banc on May 24, 1921, our number 20118, not yet reported. It is an appeal from that part of the final judgment of the Circuit Court for Clay County which gave to respondent Hill a judgment over against the appellant herein for one-half of all costs, amounting apparently to between five and six thousand dollars, which were taxed in the principal suit above-mentioned.

The principal action was a proceeding in equity brought under the provisions of the Act of 1911, relating to mechanics liens Laws of Missouri 1911, p. 314. The two counts of the petition finally stood upon declared upon contract and upon a quantum meruit to recover $ 16445.22 for the building of an addition or annex to the Royal Hotel at Excelsior Springs, Missouri, owned by respondent Hill, and for remodeling the existing building. Under the contract the cost of the annex was not to exceed the sum of $ 52775.00, appellant was to furnish all labor and material therefor and was to receive as his compensation six percent of the actual cost. For remodeling the old building he was to receive a like compensation. Before the completion of the work differences arose between the parties concerning payments due, or claimed to be due, with the result that appellant refused to proceed with the work unless paid. Thereupon respondent took charge of and completed the building and improvements, using the equipment left on the ground by appellant. Within due time appellant filed a mechanic's lien and brought suit under the Act of 1911, making the owner, mortgagees, and all sub-contractor lien claimants defendants. Respondent filed an answer, which was in effect a general denial, coupled with a counter claim in the sum of $ 40981.22. The case was tried for over fifty days before a Referee, who reported on both the law and the facts to the Circuit Court. After hearing objections and exceptions to such report, filed by both parties, the court overruled the same, confirmed the report, and rendered a judgment that "plaintiff Geo. W. Huggins, on his petition herein, have and recover of and from the defendant, Lena G. Hill, the sum of nineteen thousand, three hundred and nine dollars, with interest from this day at the rate of 6% per annum, together with the costs taxed herein, and that said plaintiff have a lien therefor against the following described real estate" (describing the hotel property). The judgment rendered further provided that the several defendant sub-contractors have judgments against appellant aggregating $ 19303.61, with a lien on the property, that appellant have execution in the amount of his judgment, together with interest thereon "and all the costs taxed herein", said execution to be a special fieri facias, specifying the hotel property, and that out of the proceeds of sale of said property, under such execution, the sheriff pay, first, the costs of the suit, then to the sub-contractors the respective amounts of their several judgments, next to appellant any difference between the amount due him and the amount due the several sub-contractors, next the amounts of two deeds of trust which were a lien on the said property, and finally to respondent any surplus remaining. As to respondent the judgment provided that "defendant, Lena G. Hill, shall take nothing by her amended answer and counterclaim herein, and as to said amended answer and counterclaim the plaintiff, George W. Huggins, shall go hence without day". In a separate paragraph the judgment further provided that "the defendant, Lena G. Hill, shall recover from the plaintiff one-half of all costs taxed in this case". It is from this part of the judgment that the appeal is taken.

I.

In approaching the question before us for review, we are fully cognizant of the general rule that in an equity case the allowance of costs is within the discretion of the trial chancellor, and will not be disturbed when no abuse of that...