Imse-Schilling Sash & Door Co. v. Kellems
| Decision Date | 19 May 1944 |
| Citation | 179 S.W.2d 910,237 Mo.App. 960 |
| Parties | Imse-Schilling Sash and Door Company, a Corporation, Paul Kerzel and Charles P. Koehler, Defendants in Error, v. Viola Dawes Kellems, Patrick J. Slattery and Clarence J. Hicks, Plaintiffs in Error |
| Court | Missouri Court of Appeals |
Reported at 237 Mo.App. 960 at 969. Petition for Writ of Certiorari Denied by Supreme Court July 3, 1944.
Original Opinion of May 2, 1944, Reported at 237 Mo.App. 960.
On Motion for Rehearing.
Two of the defendants in error, Paul Kerzel and Charles P. Koehler have filed a motion for rehearing in which they earnestly question the correctness of our decision reversing the judgment of the circuit court in so far as it adjudged and provided for the enforcement of the several mechanic's liens against the property.
Their chief contention seems to be that in holding that their exclusive remedy was by cross-petition in the Imse-Schilling Sash and Door Company suit, and that Kerzel's subsequent suit was of no force and effect notwithstanding he had not been served with process in the Imse-Schilling Sash and Door Company suit at the time of the filing of his own petition, we have denied them due process of law as guaranteed by Article 2, Section 30, of the Constitution of Missouri, and have ruled contrary to the provisions of Sections 876-880, Revised Statutes Missouri 1939 (Mo. R. S. A., secs. 876-880), which have to do with the commencement of actions and the service of process upon defendants.
There is of course no question of our appellate jurisdiction, since the complaint goes only to our interpretation of the equitable mechanic's lien law, the constitutionality of which has not been challenged at any stage of the proceeding.
In considering the question of whether our decision constitutes a denial of due process, defendants in error mistakenly approach the question from the standpoint of the ordinary defendant who is to be charged with the result of the litigation brought against him by his adversary, and who must obviously be given notice and an opportunity to be heard in his defense before his rights may be affected by any judgment rendered against him. While it is true that as lien holders of record, Kerzel and Koehler were named as defendants in the Imse-Schilling Sash and Door Company suit, the matter they are complaining of is not one of a defense to such plaintiff's suit, but of the sufficiency of the remedy provided for the enforcement of their own liens, in which respect they too occupied the status of plaintiffs in the sense that they were asking affirmative relief for themselves. Whether they have been accorded due process must therefore be considered from the standpoint of the rights of one who seeks to maintain his own...
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