Jay Industries v. Powell
| Decision Date | 15 March 1954 |
| Docket Number | No. 38738,38738 |
| Parties | JAY INDUSTRIES, Inc. v. POWELL et al. |
| Court | Mississippi Supreme Court |
E. J. Ford, Gulfport, for appellant.
King & King, Durant, for appellees.
Appellant, Jay Industries, Inc., seeking a mechanic's and materialmen's lien, filed this suit in the Circuit Court of Holmes County against appellees O. M. Powell and Mrs. V. L. Willis. Appellant is a corporation doing business under the firm name of Koolvent Metal Awnings. The petition for lien charged that defendant Powell ordered from plaintiff a metal awning for a filling station operated by Powell, in the City of Durant, and belonging to and in the possession of Powell, Mrs. Willis, and Pan-American Oil Corporation, hereinafter referred to as Pan-American, and that Willis and Pan-American are named because they own some interest in the property. The petition averred that the awning was made of aluminum, being 24 by 18 feet, that a balance was due on its purchase price of $675.40; and that the installation of the awning was necessary for the preservation and prevention of depreciation of the property of Powell and the other two defendants. It was charged that plaintiff was entitled to a purchase money lien upon the metal awning itself, under Code Sec. 337, and was also entitled to a mechanic's and materialmen's lien upon the awning, installed on September 19, 1950, building, and real estate, and also an in personam judgment against Powell. Personal process was served upon Powell and Mrs. Willis, but none was obtained upon Pan-American, the sheriff's writ reciting that he was unable to find a representative of that corporation in Holmes County. Under a writ of summons and seizure, the sheriff levied upon the awning itself. Powell made a forthcoming bond and retained its possession. Powell's answer denied that plaintiff had any lien.
On April 5, 1952, Mrs. Willis filed an answer, in which she admitted that she was the owner of the property upon which the awning was constructed. She averred that she had not authorized the construction, and that at that time Pan-American was the lessee of the property; and she denied that plaintiff was entitled to any lien. On April 18 plaintiff moved for and obtained a non-suit as to Pan-American. On April 9 Mrs. Willis filed a motion to dismiss the suit as to her. This motion was based upon two propositions: (1) She did not know of or consent to the erection of the awning, which is affixed to the land, its removal would damage the real estate by destroying the concrete island, and it would cost more than $500 to repair the realty damaged by its removal. (2) When the awning was erected, and at the time of the suit, Pan-American was the owner of the leasehold estate in the property from Mrs. Willis, and Pan-American is a necessary and indispensable party to the suit. Under Code Sec. 360, the suit to assert a lien must be filed within twelve months after the time when the money becomes due and payable and since more than twelve months have now elapsed and plaintiff cannot now sue Pan-American, even though it is a necessary party, plaintiff cannot pursue this suit against movant in the absence of such necessary party.
Several witnesses were heard on this motion. Mrs. Willis owns the property subject to the Pan-American lease. She did not give permission to erect the awning, and did not know of it until she had returned from a five months' visit to Tennessee. Powell was operating the station and had his sign in front of it. Mrs. Willis erected the filling station building and the concrete aprons. Calvin R. King, an attorney of Durant, testified that Powell was and had been for some years in charge of the station; that Powell at one time was his client but was not at the time of this hearing, and that Powell has abandoned the property, and sold his interest to Clements and others. He said that to his personal knowledge Pan-American had subleased the property to Johnson and Wiggley Oil Company, and that the latter had rented the property to Powell by an oral rental agreement. He thought that the removal of the steel posts embedded in the concrete would interfere with the further use of the property. Alvin H. Ervin testified for movant that he was in the concrete construction business; that the canopy is held up by four steel posts five or six inches in diameter; that to remove these posts would require loosening the surrounding concrete; that they are at least 36 inches in the ground and it would cost about $550 to remove the awning and the posts. He said that numerous defects in the concrete aprons would result from their removal, and described them.
For the plaintiff on the motion, D. W. Jalanivich, secretary of appellant, testified that appellant constructed this canopy under a contract with Powell. He and two helpers erected it in a day and a half. They bored four holes in the concrete eight to ten inches in diameter and excavated the dirt below it from 26 to 36 inches. The metal posts, four inches in diameter, were then set into these holes, and cement was poured around them. They then assembled the framework of the awning, and screwed and bolted it onto the four metal pipes so erected. In order to remove the canopy from the posts, it would take about an hour's labor to unbolt and unscrew the joints. In order to remove...
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Mississippi Motor Finance, Inc. v. Thomas, 42511
...Code of 1942, Rec.; Parsons v. Foster, 154 Miss. 363, 122 So. 387; Lewis v. Jefferson, 173 Miss. 657, 161 So. 669; Jay Industries v. Powell, 220 Miss. 372, 71 So.2d 193; and since the appellant was not made a party to that proceeding its rights were not affected thereby. Parsons v. Foster, ......