Huggins v. Hill

• Decision Date: 24 May 1921
• Docket Number: No. 20118.,20118.
• Citation: 236 S.W. 1051
• Parties: HUGGINS v. HILL et al.
• Court: Missouri Supreme Court

236 S.W. 1051

HUGGINS v. HILL et al.

No. 20118.

Supreme Court of Missouri, in Banc.

May 24, 1921.

Motion for Rehearing Overruled December 30, 1921.

Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.

Action by George W. Huggins against Lena a Hill and others. From a judgment for plaintiff, the defendant named and certain other defendants appeal. Affirmed.

G. W. Stubbs and E. W. Sloan, both of Kansas City, for appellants.

Huff, Meservey, German & Michaels, of Kansas City, for respondent Huggins.

New, Miller, Camack & Winger, of Kansas City, for respondents Ulrich.

Lathrop, Morrow, Fox & Moore, of Kansas City, and Martin. E. Lawson, of Liberty, for respondent Kleeman.

Cooper, Neel & right, of Kansas City, for respondents Jennens and others.

Davis & Woodruff, of Kansas City, for respondents Stewart-Peck Sand Co. and others. Strother & Campbell, of Kansas City, for respondent Wakefield Mantel & Tile Co.

Vinton Pike, of St. Joseph, for respondent St. Joseph Electrical Co.

MOZLEY, C.

This is an equitable action brought under the provisions of an act of 1911 pertaining to mechanic's lien. Laws of 1911, p. 314. It is not only equitable because the statute so denominates it, but it is equitable in substance, when measured by the usual rules of equity.

Plaintiff, a builder, agreed to build an addition or annex to the Royal Hotel at Excelsior Springs, Mo., and also to do some repair work on the old building. This property belonged to defendant Lena G. Hill. By the terms of the contract the plaintiff was to furnish the material and labor, and for his compensation receive 6 per cent. of the amount of labor and materials furnished. The annex was not to cost in excess of $52,775, but plaintiff Was to receive only 6 per cent. of the actual cost, if it cost less than that sum to build the annex. He got a like compensation for work and material furnished on the old portion of the building. Before the completion of the work differences arose between the parties, and plaintiff never fully finished the work, but defendant had it finished, and thereby appropriated what the plaintiff had done.

Plaintiff originally brought this suit in seven counts, but finally dismissed five of the counts, and brought another and different suit covering these five "counts. These were for nonlienable things. The instant action is covered by the first two counts of the original petition. Fairly construed, in one count the plaintiff seeks to recover as in quantum meruit and in the other as upon contract. Seeking to enforce his lien upon the property for the unpaid balance for labor and material furnished, the plaintiff availed himself of the provisions of the act of 1911 foresaid. Many of the materialmen from whom plaintiff had bought materials for the building had filed liens, and some had brought suits. In addition, some time after plaintiff began his work under the contract defendant had placed two mortgages upon the property, and thus the question of priority of liens come into the case. It was a typical case for the application of the provisions of the act of 1911, supra. The plaintiff brought into court by his action all these materialmen, all those interested in the two deeds of trust, and the husband of Lena G. Hill, so that no person having a claim against or intersted in the property was left out of plaintiff's case.

The cause was referred to a referee, and from the judgment and decree of the court, is now made based upon the findings of this referee, the defendant Lena Hill has appealed. It should be added that she filed a large counterclaim which was disallowed both by referee and court. Her appeal covers this, as well as the plaintiff's judgment for over $13,000.

In this same action the plaintiff appealed from that portion of the decree which charged one-half of the costs to him. This appeal has its particular number upon OUT docket. Upon the filing of the referee's report, the court granted time (over the four days allowed by statute) in which to file exceptions to the report of the referee. Of this, Point Is made by respondent.

I. There are frequent expressions by this court to the effect that these exceptions should be filed within the four days. The statute so says. Section 2012, R. S. 1909.

We have cases like Gaston v. Kellogg, 91 Mo. 104, 3 S. W. 589, Maloney v. Ry., 122 Mo. 106, 26 S. W. 702, and Reinecke v. Jod, 56 Mo. 386, wherein the court has said that the trial court might have well overruled the exceptions on the ground that they were filed, out of time. These cases, however, do not reach the real point, and that is: Can the court, under this statute, grant additional time (the grant being made within the four days, as here), and by this grant make exceptions filed out of time proper for consideration as if filed within the statutory time? This is the real point here. McPike v. McPike, 111 Mo. loc. cit. 222, 20 S. W. loc. cit. 12, Gantt, J., said:

"The circuit court gave each side leave to file exceptions on or before February 1887. The administrator de bonis non filed his exceptions on February 2, 1887. The extension of time was a matter within the discretion of the trial judge, and this motion was properly overruled."

In the McPike Case the referees report had been filed on December 3th, prior to the February 1st mentioned, supra. This ruling was in division 2 of this court, and was approved in division 1 in the more recent case of State ex rel. v. Woods, 234 Mo. loc. cit. 23, 24, 133 S. W. 337. In view of these holdings, we are inclined to the view that the exceptions to the referee's report were in time. The statute (section 2012, supra), is quite specific, but it appears that we hold that the trial court has some discretion in extending the time, at least if it appears the extension is made within the four days allowed by the statute.

II. There is, however, a more serious objection to the record. It is thus asserted in respondent's brief:

"The case was tried before the referee for nearly 60 days; there were over 3,800 pages of transcript and hundreds of exhibits; only a email part of the evidence has been brought up. We do not understand that any question is now made of any finding of fact by the ref

No denial of this condition of the record is made. In fact the case here is largely made to depend upon the findings of fact made by the referee. The abstract of record indicates the truth of the above statement of counsel. The whole evidence and instruments in evidence are not here for consideration by this court. Nor are they abstracted. Portions of the evidence are abstracted in a way, and some of the exhibits are printed; but this does not suffice in an equity suit. The rule of this court is thus stated by Lamm., J, in Pitts v. Pitts, 201 Mo. loc. cit. 359, 100 S. W. 1047:

"Plaintiffs' learned counsel argue that on the facts found by the chancellor the decree was for the wrong party—in other words, the judgment on its very face is a non sequitur. It may be conceded there are dicta in some of our decisions lending countenance to the view that we will review a judgment in equity which incorporates into itself a finding of facts and reverse or affirm such judgment in accordance with our notions of the probative force of the facts found. But such precedents, if precedents they be, must no longer be followed. Our later decisions thoroughly review the cases and furthermore consider the matter on its philosophies and from the standpoint of the very right and justice of the thing, and hold that in an equity suit it is incumbent upon a litigant seeking relief from us to bring here the evidence, so that our conscience may be bound and we may seek equity and do it in the light of the testimony itself. Guinan v. Donnell, 201 Mo. 173; Patterson v. Patterson, 200 Mo. 335; State ex rel. v. Jarrott, 183 Mo. 204; see, also, rule 7 of this court.

"Equity suits are to be heard de novo on appeal. The eye of a chancellor must search the very marrow of the thing; and, in order to discern what is due the litigant, that eye must not be baffled by the screen of a mere finding of facts below—the question still remaining. Were the facts as found the real facts or not? Fitzpatrick v. Weber, 168 Mo. 562; Shaffer v. Detie, supra; Bouton v. Pippin, supra. If the chancellor had called to his aid a jury and submitted to that jury issues of fact the jury's finding would have been merely advisory and not binding on the chancellor. Bouton v. Pippin, 192 Mo. loc. cit. 474. By analogy, the chancellor's findings, nisi, are looked on as...