Jefferson County Lumber Co. v. Robinson
| Decision Date | 08 November 1938 |
| Docket Number | No. 24643.,24643. |
| Citation | 121 S.W.2d 209 |
| Court | Missouri Court of Appeals |
| Parties | JEFFERSON COUNTY LUMBER CO. v. ROBINSON et al. |
Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.
"Not to be published in State Reports."
Action by the Jefferson County Lumber Company against Louis Z. Robinson and others to enforce a materialman's lien. From an adverse judgment, defendants Alexander H. Major and Leonard E. Kirven appeal.
Affirmed.
Robert L. Maul, of St. Louis, for appellants.
Edgar & Matthes, of De Soto, for respondent.
SUTTON, Commissioner.
This is an action in equity to enforce a materialman's lien on certain real estate situate in Jefferson County, Missouri, under the so-called mechanics' lien law, Mo. St.Ann. §§ 3156-3189, pp. 4972-5016, and to have such lien given priority over a deed of trust.
Plaintiff filed an affidavit for an order of publication, wherein the affiant states "that the defendant Louis Z. Robinson is a non-resident of the state of Missouri or has absconded and absented himself from his usual place of abode in this state so that the ordinary process of law cannot be served upon him." Pursuant to said affidavit the court made its order of publication. Publication was duly made and proof thereof was duly filed.
The evidence shows that on December 12, 1935, defendants Louis Z. Robinson and Alexander H. Major entered into a contract for the purchase and sale of a tract of land consisting of 43.25 acres, situate in Jefferson County.
On December 17, 1935, pursuant to said contract, defendant Major signed and acknowledged a warranty deed purporting to convey said tract of land to defendant Robinson, and on the same day defendant Robinson signed and acknowledged a deed of trust purporting to convey to defendant Kirven as trustee said tract of land to secure the payment of a promissory note in the principal sum of ten thousand dollars executed by said Robinson and made payable to the order of said Major.
The purchase price of the tract of land, as expressed in the deed of trust, is ten thousand dollars. The deed of trust and note secured thereby were given for the purchase price.
Defendant Robinson went into possession of said tract of land, and on January 16th entered into a contract with plaintiff for the purchase of building materials to be used in repairing a number of cabins on said land, and pursuant to said contract plaintiff delivered to said defendant Robinson, from January 16 to January 28, 1936, building materials of the value of $511.49. Of such materials so furnished and delivered to said defendant there was used by him a portion of the value of $210.79, and the remainder was returned to plaintiff.
A lien account for the materials so used amounting to $210.79 was duly filed in the office of the clerk of the Circuit Court in Jefferson County. To enforce its materialman's lien against one acre of land on which said cabins are located for the said sum of $210.79 as a prior lien to the purchase money deed of trust, plaintiff brings this suit.
The court gave judgment in favor of plaintiff for $210.79 and interest, and ordered that the same be enforced as a prior lien to the deed of trust. Defendants Major and Kirven appeal.
Appellants urge here that the affidavit for an order of publication against defendant Louis Z. Robinson is insufficient to authorize service by publication so as to confer jurisdiction, and that the judgment given by the court is therefore invalid and void. Appellants contend that the affidavit is self-contradictory in that it alleges that the defendant is a non-resident of this state and that he has at the same time a usual place of abode in this state.
Our statute, section 739, R.S.1929, Mo. St.Ann., sec. 739, p. 959, authorizes service by publication if the plaintiff shall allege in his petition or file an affidavit alleging "that part or all of the defendants are non-residents of the state * * * or have absconded or absented themselves from their usual place of abode in this state * * * so that the ordinary process of law cannot be served upon them."
It will be observed that the affidavit filed in this case follows the statute literally. It does not allege that the defendant is a non-resident of this state and has absented himself from his usual place of abode in this state. It alleges that defendant is a non-resident of this state or has absented himself from his usual place of abode in this state. There is a wide difference between the two allegations. The one is to the effect that the defendant is a non-resident of this state while at the same time having a usual place of abode in this state. The other is to the effect that he is either a non-resident of this state, or, if not a non-resident, has absented himself from his usual place of abode in this state. If either of these alternatives is true, and the affiant says that one or the other is true, service by publication is authorized. We believe the statute properly construed intends that just such an affidavit may be made. We recognize the familiar rule that the statute must be strictly complied with, but this does not mean the statute is to be so construed as to make compliance impossible. In many, perhaps in most, cases the plaintiff does not know and maybe cannot know whether the defendant has become a non-resident or has merely absented himself from his usual place of abode in this state, but he does know that one or the other of these alternatives is true. Shall he stultify himself by swearing that the one is true when he does not know and cannot know which one is true, or, through no fault of his but through the conduct of the defendant, suffer the injustice of being denied service by publication at all? To so construe the statute would defeat the purpose for which it was enacted.
Appellants to support their contention cite and rely on Hinkle v. Lovelace, 204 Mo. 208, 102 S.W. 1015, 11 L.R.A.,N.S., 730, 120 Am.St.Rep. 698, 11 Ann.Cas. 794. In that case Judge Woodson held that an allegation in the petition "that defendant is a nonresident of this state, or that he has absconded or absented himself from his usual place of abode in this state so the ordinary process of law cannot be served upon him" [page 1017] was insufficient to authorize service by...
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