L. J. Mueller Furnace Co. v. Dreibelbis

• Decision Date: 08 March 1921
• Docket Number: No. 16382.,16382.
• Citation: 229 S.W. 240
• Parties: L. J. MUELLER FURNACE CO. v. DREIBELBIS et al.
• Court: Missouri Court of Appeals

229 S.W. 240

L. J. MUELLER FURNACE CO. v. DREIBELBIS et al.

No. 16382.

St. Louis Court of Appeals. Missouri.

March 8, 1921.

Rehearing Denied March 31, 1921.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

"Not to be officially published."

Suit by the L. J. Mueller Furnace Company against D. C. Dreibelbis, Anna Martin, and others. Judgment for plaintiff, and the last-named defendant appeals. Reversed.

A. E. L. Gardner and Henry Higginbotham, both of Clayton, for appellant.

E. G. Curtis, of St. Louis, for respondent.

BRUERE, C.

The plaintiff, respondent here, brought this suit against D. C. Dreibelbis and Anna Martin, the appellant, to enforce a mechanic's lien against the property of the appellant for the sum of $189.11, and to recover a personal judgment for said sum against said D. C. Dreibelbis. The defendant Leo Rottler was the original contractor under a contract with the appellant for the erection of a building on the premises belonging to appellant. D. C. Dreibelbis was the subcontractor under Leo Rottler and became indebted to the plaintiff, in the sum sued for, for work and labor done and materials furnished in the construction of said building.

The cause was tried before the circuit court of St. Louis county; a jury was waived. The plaintiff obtained a judgment establishing a mechanic's lien, for the sum of $189.11, with interest, against the building and premises of the appellant, and also a personal judgment for said sum against D. C. Dreibelbis. From this judgment Anna Martin, the owner of the building, prosecutes this appeal.

The only error assigned is that there was no notice given of the notice required to be given the appellant before the filing of the lien, as prescribed by section 7235, Revised Statutes of Missouri of 1919.

Said section reads:

"Every person except the original contractor, who may wish to avail himself of the benefit of the provisions of this article, shall give ten days' notice before the filing of the lien, as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due. Such notice may be served by any officer authorized by law to serve process in civil actions, or by any person who would be a competent witness. When served by an officer, his official return indorsed thereon shall be proof thereof, and when served by any other person, the fact of such service shall be verified by affidavit of the person so serving."

No objection being raised to the sufficiency of the notice, introduced at the trial, we will set out only the indorsement relating to the service thereof. Said indorsement reads:

Notice to Owner of Claim of Mechanic's Lien No. 104. From L. J. Mueller Furnace Company to Mrs. Anna Martin. Service of Notice. I. Cooper Pogue, hereby certify that on the 24th day of January, 1916, I served the within notice of claim of lien on Mrs. Anna Martin by delivering a true copy thereof to L. J. Mueller Furnace Co. Anna Martin.

                                    Cooper Pogue
                

Cooper Pogue was not an officer clothed with the right to serve process, nor was the fact of the service of the notice verified by his affidavit.

The only evidence introduced at the trial, touching the service of the notice, is found in the deposition of Cooper Pogue. He testified, in substance, that on the 24th day of June, 1916, he was in the employ of plaintiff; that at that time he lived on Sappington Road, in Glendale, St. Louis county, Mo., two blocks from where the appellant lived; that on said date he served the notice on Mrs. August E. Martin, daughter-in-law of appellant, at appellant's home on Sappington Road, in Glendale, St. Louis county, Mo.; that Mrs. August E. Martin received the notice and promised to give the same to appellant and that Mrs. August E. Martin was about 35 years of age. There is no evidence in the record that said notice was ever received by the appellant.

1. Appellant's first contention is that the notice must be delivered directly to the person to be notified.

It is a well-established rule that when the statute requires notice without prescribing the method of service, personal service is intended.

Under this rule it has been held in this state that constructive service of the notice required under the Mechanic's Lien Law could not be made because the law intended personal notice. Ryan v. Kelly, 9 Mo. App. 396; Meyer v. Christian, 64 Mo. App. 203; Williams v. Dittenhoefer, 188 Mo. 134, loc. cit. 143, 86 S. W. 242.

But these cases were decided prior to the enactment in 1909 of section 9156, Revised Statutes of Missouri 1919. Said section reads:

"Whenever any of the statutes of this state now require or shall hereafter require or imply that a notice shall be given to any person concerning or affecting any right, property, claim, duty, matter or thing of whatsoever character or nature, unless such statute shall expressly direct a different method of service, the delivery of a true copy of such notice to the person intended to he notified, or the leaving of such copy at his usual place of abode, with some member of his family over the age of fifteen years, shall constitute a valid and sufficient service of such notice."

The statute having authorized constructive service, personal service of the notice is no longer necessary. Miller v. Prough, 221 S. W. 159, loc. cit. 162.

We rule that contention against appellant.

2. Appellant next contends that —

"There is no evidence in the record tending to prove that Mrs. August E. Martin was at the time she received this alleged notice handed to her by the witness Pogue at the usual place of abode of Anna Martin."

The evidence introduced was that the notice was served at the home of appellant and at the address where the appellant was living on the date of service.

An "abode" is the place where a person dwells; his domicile. There is no substantial difference as used in the statute between the words "home" and "domicile." A domicile is the place where a person lives and has his home. King v. King, 155 Mo. 406, loc. cit. 424, 56 S. W. 534; Mitchell v. United States, 88 U. S. (21 Wall.) 350, loc. cit. 352, 22 L. Ed. 584; 3 Words and Phrases, pp. 2168 and 2172; In re Zerega's Will (Surr.) 20 N. Y. Supp. loc. cit. 418; Venable v. Paulding, 19 Minn. loc. cit. 492 (Gil. 422); Dorsey v. Brigham, 177 Ill. 250, 52 N. E. loc. cit. 307, 42 L. R. A. 809, 69 Am. St. Rep. 228.

We rule this point against appellant.

The serious defect in the manner of serving the notice is that there was no evidence introduced to show that the person to whom the notice was delivered, Mrs. August E. Martin, was a member of appellant's family.

"Family," in the sense used in the statute, means:

"A collective...