Krummel v. Hintz
| Decision Date | 21 June 1949 |
| Docket Number | No. 27578.,27578. |
| Citation | 222 S.W.2d 574 |
| Parties | KRUMMEL v. HINTZ et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court, Charles B. Williams, Judge.
"Not to be reported in State Reports."
Action by Paul Krummel against Robert Hintz and James Calvert, doing business as Mid-West Wrecking Company and others, for recovery of a personal judgment against the named defendants and to have such judgment declared a lien upon certain land. From a judgment granting recovery against the named defendants but denying a mechanic's lien, the plaintiff appeals.
Appeal dismissed.
Homer Hall, of St. Louis, for appellant.
Leahy & Leahy and Joseph L. Badaracco, all of St. Louis, for respondents.
BENNICK, Commissioner.
This is a mechanic's lien suit which was brought by Paul Krummel, the owner of certain material, machinery, and equipment adapted for use in the wrecking and removal of existing structures and the like in the preparation of land for the making of new improvements upon it.
The two principal defendants are Yellow Transit Company and Yellow Transit Terminals, Inc., both of which are engaged in the business of operating motor vehicles in the transportation of property to and from the City of St. Louis and in receiving and delivering property therein. The two corporations are evidently closely related in their business activities; and it would appear that in part at least the same persons serve as officers of both corporations, though not always in the same capacities.
In 1944 such corporations, or whichever of them was the owner of the land, contracted with Robert Hintz and James Calvert, doing business as Mid-West Wrecking Company, for the removal of an old structure from certain property located at Tenth and Gratiot Streets in the City of St. Louis. It was admitted that such demolition work was contracted for in preparation and for the purpose of the construction on the land of a new building to be used by the two corporations in the operation of their business.
Lacking suitable equipment for the performance of their contract, Hintz and Calvert, in January, 1945, rented certain material, machinery, and equipment from Krummel, and used the same in partially wrecking the existing structure.
Upon default in the payment of the agreed rental charge of $507.86, Krummel instituted this suit for the recovery of a personal judgment against Hintz and Calvert for such sum with interest, with the prayer that such judgment be declared to be a lien upon the land superior to the lien of defendant Mercantile-Commerce Bank and Trust Company under a deed of trust executed by one or both of the transit companies.
The case was submitted upon a stipulation of the parties by which they agreed that the facts heretofore stated were true and were to be accepted by the court as the facts of the case, and that the sole matter to be decided was the question of Krummel's right to a mechanic's lien. It was recognized, of course, that a lien would not attach for services rendered or materials furnished in connection with the mere wrecking of the old building, and that for Krummel to have his lien he was required to show that the existing structure was wrecked and removed pursuant to an integral plan and immediate purpose on the part of the transit companies for its replacement by a new building. Arthur Morgan Trucking Co. v. Shartzer, 237 Mo.App. 535, 174 S.W.2d 226.
It was Krummel's contention that this essential element of his case was embraced in and supplied by the stipulation that the contract for the removal of the old building was entered into in preparation and for the purpose of the construction on the land of a new building for the use of the transit companies in the operation of their business. On the other hand, the two companies took the position that the fact so stipulated did not establish that at the very time Krummel's machinery was furnished and used in the work of removing the old building, they then had a definite and formed plan which encompassed both wrecking and building as one project; nor did it foreclose them from urging that their intention at that time went no further than to clear their property of the old structure so as to prepare for the construction of a new building in the indefinite future.
The court rendered a personal judgment in favor of Krummel, and against defendants Hintz and Calvert, for principal sum and interest aggregating $600.57, but denied Krummel's right to a mechanic's lien. Whether the court was right in denying the lien is the question which Krummel would have this court review.
However, at the outset of the case defendants challenge Krummel's right to be heard in this court upon the ground that his notice of appeal was not filed within such time as to have made his appeal effective. We appreciate that prior to the filing of the transcript a motion to dismiss was overruled, but such action neither bars defendants from reasserting the point in connection with the submission of the case, nor does it conclude this court in its reexamination of the matter in the light of the whole record which it did not have before it at the time of its denial of the motion to dismiss. The timely filing of the notice of appeal is jurisdictional, Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657; and if the record shows that the notice of appeal was in fact not filed within such time as to have made the appeal effective, this court has no recourse but to say so, no matter how greatly it may be disposed to give a liberal construction to rules and statutes affecting appellate practice and procedure.
The difficulty comes about as the result of certain unusual after-judgment proceedings in the lower court prior to the filing of the notice of appeal.
The judgment denying the lien was rendered and entered of record on February 9, 1948.
Contemporaneously with the rendition of judgment, the court filed a memorandum in which it stated, among other things, that there had been nothing to justify the inference that it had been the owner's purpose to begin the erection of the new building immediately upon the completion of the demolition work for which Krummel's machinery had been engaged. The court thereby distinguished the case from Arthur Morgan Trucking Co. v. Shartzer, supra, which held, as we have already pointed out, that for work or labor performed in wrecking or removing an existing structure to constitute a lienable claim, such work or labor must have been done pursuant to a definite and formed plan or intention on the owner's part of proceeding without delay or interruption with a new building, erection, or improvement.
On February 19, 1948, which was the tenth day after the entry of judgment, plaintiff filed his motion for judgment establishing a lien, or, in lieu of judgment, for a new trial upon the question of his right to a lien.
The motion for a new trial was argued and submitted on March 12, 1948; and on May 10, 1948, on Krummel's motion, the judgment was reopened for the court to hear additional evidence by which Krummel hoped to bring the case within the rule of Arthur Morgan Trucking Co. v. Shartzer, supra.
The import of the evidence introduced at such additional hearing was to show that Hintz and Calvert, after renting Krummel's equipment, had abandoned their contract short of full performance; that in 1946 the transit companies had contracted with Krummel himself to complete the wrecking of the existing structure; that Krummel had thereafter completed the work for which he had been employed; and that in 1947 the transit companies had contracted with the Murch-Jarvis Construction Company for the erection of a new building upon the land from which the old structure had been removed.
It is to be borne in mind that it is against the new building and land that Krummel asserts his right to a lien for the amount due him from Hintz and Calvert for...
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