Kranz v. Centropolis Crusher, Inc., WD

• Decision Date: 12 January 1982
• Docket Number: No. WD,WD
• Parties: Al KRANZ d/b/a Kranz Construction Company, Plaintiff-Respondent, v. CENTROPOLIS CRUSHER, INC., Defendant, and Callaway Mining Co., Applicant for Intervention-Appellant. 32040.
• Court: Missouri Court of Appeals

Page 136

630 S.W.2d 136

Al KRANZ d/b/a Kranz Construction Company, Plaintiff-Respondent, v. CENTROPOLIS CRUSHER, INC., Defendant, and Callaway Mining Co., Applicant for Intervention-Appellant.

No. WD 32040.

Missouri Court of Appeals, Western District.

Jan. 12, 1982.

Modified Feb. 16, 1982.

Rehearing Denied Feb. 17, 1982.

Jerome T. Wolf, Terry W. Schackmann, Spencer, Fane, Britt & Browne, Kansas City, for applicant for intervention-appellant.

Gordon R. Gaebler, Charles R. Svoboda, Kansas City, for plaintiff-respondent.

Before KENNEDY, P. J., and SHANGLER and WASSERSTROM, JJ.

WASSERSTROM, Judge.

On July 5, 1978, the trial court entered a default judgment in favor of Al Kranz d/b/a Kranz Construction Company ("Kranz") against Centropolis Crusher, Inc. ("Centropolis") for $5,225.47 as the reasonable value of work and material furnished plus $574.50 interest, and declaring an equitable lien in favor of Kranz against certain described real estate on which the work was constructed. On February 2, 1979, Callaway Mining Co. ("Callaway") moved to intervene as a matter of right under the provisions of Rule 52.12(a) and filed with that motion its proposed petition for review in which it stated its grounds for requesting that the judgment of July 5, 1978, be set aside. That motion was denied and the petition for review stricken on June 24, 1980, and a motion to reconsider that ruling was denied on August 1, 1980. From the denial of its motion to intervene, Callaway pursues this appeal.

The following facts appear from the tendered petition for review and the affidavit submitted by Callaway in support of that proposed petition. In 1976, Kranz constructed a commercial entranceway for Centropolis on property owned by Centropolis. Kranz claimed the sum of $5,225.47 as the reasonable value of the work done, but no payment was made by Centropolis. A mechanic's lien was filed by Kranz on January 17, 1977. Thereafter, on March 22, 1978, Kranz filed the present lawsuit seeking an "equitable lien." The same day that suit was filed, Kranz also filed a lis pendens, but only in the final minutes of the business day of the clerk's office, on March 22, 1978.

At the time that Kranz did the construction work here in issue, and of course long prior to the time that it filed the present suit, Kranz had already on file a petition to enforce a mechanic's lien on the same property to which it claims an equitable lien in this case. In the earlier mechanic's lien case, the defendants named in addition to Centropolis were Diversified Mortgage Investors ("DMI"), Continental Mortgage Investors ("CMI") and the trustees under the two deeds of trust which secured notes from Centropolis to DMI and CMI. Among other issues presented in the mechanic's lien case was the question of whether the Kranz mechanic's lien would take priority over the DMI and CMI deeds of trust.

On March 1, 1978, the successor trustee under the two deeds of trust gave notice to all parties in interest, including Kranz, that a foreclosure sale would be held on March 23, 1978. The sale was held as scheduled on March 23, the property was bid in by DMI and was by it resold to Callaway. Kranz and its attorneys were present at the foreclosure sale, but no actual notice was given by them at that time that Kranz had filed a lawsuit and a lis pendens affecting the property on the previous afternoon.

On March 22, 1978, the same day that this suit and the lis pendens were filed, Kranz also requested service of process upon Centropolis through its registered agent. A non est return was made on April 21, 1978. The service on which Kranz relies to support its judgment here was not made until May 5, 1978, at which time a process server, at Kranz's direction, went to a business address at 2701 Manchester, Kansas City, Missouri, and delivered a summons to a person described in the return as "Jackie-Clerk."

The business premises at which the summons was so delivered had formerly been occupied by Centropolis. However, by the time of this purported service, Centropolis was completely out of business and had no employees, much less a managing officer, on those premises. This property had by that time been taken over by Callaway. It might be inferred that this was a fact known by Kranz.

At the time of the default here against Centropolis on July 5, 1978, there was no party defendant other than Centropolis and no actual notice of any kind had been given to Callaway or its predecessor in title, DMI. Although it might be inferred that Kranz knew or should have known that Centropolis was no longer conducting any operations at the time of the default hearing, nevertheless Kranz did nothing to prevent the trial judge from proceeding under the impression that Centropolis still owned the property on which an equitable lien was being declared and that good service had been obtained upon Centropolis. ¹ When Callaway learned of the entry of that judgment, it proceeded with the present motion to intervene.

The intervention proceeding was transferred to Judge Martin, who denied Callaway's motion solely on the ground that he had no jurisdiction to grant it. Thus the order overruling the motion to intervene and striking the petition for review recites: "The motion of Callaway Mining Company to intervene herein which was filed February 2, 1979 is overruled because it was not timely filed and the Court does not now have jurisdiction to allow intervention. City of Montgomery v. Newson, 469 S.W.2d 54 (Mo.App.); Alamo Credit Corporation v. Smallwood, 459 S.W.2d 731 (Mo.App.)." On hearing the motion for reconsideration, the trial court amplified that ruling as follows: "I might say that in my order overruling the motion to intervene and striking the petition for review, I did not consider the merits of the attack that Callaway is making upon the judgment, whether it be for a lack of proper service or whether it be lack of a cause of action, that is, equitable lien or anything like that. My order is directed purely and solely to the procedure that Callaway is undertaking in order to make that attack. And based upon the decisions that I've cited in there, in the Montgomery v. Newson case, indicates that once that judgment is final the Court loses jurisdiction and I'd have no authority whatsoever to allow intervention."

The rule referred to by the trial court does prevail in the ordinary situation. However, there are exceptions. As stated in Hub State Bank v. Wyatt, 589 S.W.2d 372 (Mo.App.1979), the court may not disturb its judgment after thirty days "other than as invested by statute or common law procedures." The statutory and common law procedures so referred to consist of an arsenal holding six weapons: (1) a separate suit in equity; (2) a statutory petition for review; (3) a nunc pro tunc order; (4) a motion in the nature of a writ of error coram nobis; (5) a motion showing fraud practiced on the court; and (6) a motion showing irregularity on the face of the record. Godsy v. Godsy, 565 S.W.2d 726, 732 (Mo.App.1978). If Callaway showed proper grounds for any of these procedural remedies, the trial court did have jurisdiction to grant the relief of setting aside the judgment.

There is no need to go any further than the very first procedure mentioned in Godsy, namely the use of a separate suit in equity. The classic ground for that procedure is fraud in the procurement of the judgment. Godsy at page 733, and authorities there cited. Moreover, equity may give relief in this type of situation when a wrong has been done through accident or mistake as readily as when there has been fraud in the concoction or procurement of a judgment. Boyer v. Church, 573 S.W.2d 444, 447 (Mo.App.1978) and cases there cited. Callaway's...