Jones v. Alf. Bennett Lumber Co.

• Decision Date: 03 June 1913
• Citation: 157 S.W. 864
• Parties: JONES v. ALF. BENNETT LUMBER CO.
• Court: Missouri Court of Appeals

157 S.W. 864

JONES v. ALF. BENNETT LUMBER CO.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

1. MASTER AND SERVANT (§ 82) — LABORERS' LIENS — "PERSON."

Under Rev. St. 1909, § 2188, providing that when the property of any company or person shall be seized upon any process, or when the business shall be suspended by the action of creditors, or put in the hands of a receiver, the debts owing to laborers or servants shall be treated as preferred debts, and shall first be paid, and any laborer or servant desiring to enforce his or her claim for wages shall present a statement under oath to the officer, person, or court charged with such property, within 10 days after seizure thereof, on any execution or writ of attachment and within 30 days after the same may have been placed in the hands of a receiver, but that any person interested may contest such claim; and in view of sections 2189, 2190, respectively fixing the time within which laborers shall commence their actions upon such claims, and providing for the enforcement of judgments in their favor, a laborer having a claim against his employer for wages has no right of action against a third person who in some manner other than by execution or attachment comes into possession of the employer's property, for the statute applies only where the property has been seized under process of court, and not where it is taken under some paramount lien as a mortgage, and the word "person," used in that portion of the statute providing that a laborer desiring to enforce a claim shall present a statement to the officer, person, or court charged with the property, merely refers to one in charge of such property in some capacity under the process of the court.

2. JUDGMENT (§ 18) — VALIDITY — PLEADING — NECESSITY.

No valid judgment can be entered under a petition which states no cause of action.

3. APPEAL AND ERROR (§§ 238, 285) — PRESENTATION BELOW OF GROUNDS OF REVIEW — NEW TRIAL — NECESSITY.

As the failure of a petition to state a cause of action is an error appearing on the face of the record proper, the appellate court, on writ of error, will reverse the judgment,

though no motion for new trial or in arrest was filed.

Error to Circuit Court, Stoddard County.

Action by J. T. Jones against the Alf. Bennett Lumber Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

W. E. Edmonds, of Bernie, for plaintiff in error. Johnson, Houts, Marlatt & Hawes, of St. Louis, for defendant in error.

ALLEN, J.

Plaintiff, defendant in error here, brought suit in the Stoddard county circuit court on August 6, 1910, against the Alf. Bennett Lumber Company, plaintiff in error, upon certain claims, theretofore assigned to plaintiff, for work and labor performed for the firm of Chas. M. Fletcher & Son. The petition contains 23 different counts; the first count thereof, omitting formal allegations, being as follows: "Plaintiff for cause of action states that on or about the months of July and August, 1909, Charles M. Fletcher and Robert U. Fletcher were copartners in business at the county of Stoddard, in the state of Missouri, under the firm name and style of Charles M. Fletcher Son, and under such name and style were engaged in the business of sawing, manufacturing, and marketing hardwood lumber. That on or about the _____ day of August, 1909, the business and operations of said firm were closed out and suspended by the action of creditors of said firm in this: That the lumber, sawmill, and appliances belonging to said firm were taken possession of by Mills Brothers and the Bank of Bernie, creditors of said firm, under and by virtue of two chattel mortgages given to said creditors by said firm prior to said last-mentioned date, and all of said property of said firm sold to satisfy said mortgages. That prior to said sale defendants, the said Alf. Bennett Lumber Company, took into their possession lumber belonging to said firm of Charles M. Fletcher & Son, sold the same for a large sum of money, to wit, the sum of $2,000, and that defendants have retained and still retain in their possession said sum of money, under the claim that the said Charles M. Fletcher & Son were indebted to said defendants. That at the time said defendants took into their possession said lumber the said Charles M. Fletcher & Son were indebted to one J. M. Lane for work and common labor done and performed in and upon said lumber in and about said sawmill in the sum of thirty-six and 93/100 dollars. That said work and labor was done within six months prior to the taking possession of said lumber by defendants, and is and was a preferred and prior claim against the property and assets of said Charles M. Fletcher & Son to any debt or claim of defendants against said Charles M. Fletcher & Son. That on the 10th day of September, 1909, the said J. M. Lane duly assigned in writing his said claim to this plaintiff. Wherefore plaintiff asks judgment for said sum of thirty-six and 93/100 dollars."

Each of the 22 succeeding counts were substantially the same as that above, differing only in the name of the person by whom the work and labor was alleged to have been performed and the amount due therefor.

Continuing, the petition set out in full a notice alleged to have been served on defendant September 24, 1909, stating the amount claimed to be due plaintiff as assignee of the 23 claims sued upon, specifying the nature of the work performed by said laborers and when performed, calling attention to section 3167, c. 26, Rev. Stat. of Mo. 1899 (now section 2188, Rev. Stat. 1909), and reciting that the business of Charles M. Fletcher & Son had been suspended by the action of...