Landers Lumber Co. v. Short, 5361.

• Decision Date: 04 March 1935
• Docket Number: No. 5361.,5361.
• Citation: 81 S.W.2d 375
• Parties: LANDERS LUMBER CO. v. SHORT et al.
• Court: Missouri Court of Appeals

81 S.W.2d 375

LANDERS LUMBER CO. v. SHORT et al.

No. 5361.

Springfield Court of Appeals. Missouri.

March 4, 1935.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

"Not to be published in State Reports."

Suit by the Landers Lumber Company against Grant O. Short, H. Proserpi, and others. From a judgment against defendant Proserpi, he appealed, after which M. H. Galt, as trustee, was substituted as appellant.

Affirmed.

Hamlin, Hamlin & Hamlin, of Springfield, for appellant.

F. W. Barrett, of Springfield, for respondents.

BAILEY, Judge.

This is a suit in equity to establish a mechanic's lien under the provisions of section 3180, R. S. Mo. 1929 (Mo. St. Ann. § 3180, p. 5008). The original suit was instituted by the Landers Lumber Company against Grant O. Short and Etta Short, his wife, who were owners of the property against which the lien was sought, also Arthur Hart, the contractor who constructed the improvements, and H. Proserpi, who had filed a lien claim. The latter filed an answer and asked that his lien be established. In the first trial of this suit, before the circuit court of Greene county, the trial court found for the original plaintiff and entered judgment to enforce its lien and also rendered a personal judgment against defendant Hart. It found against Proserpi on his claim for a lien. An appeal was taken from that judgment to this court, which reversed and remanded the case because of failure of plaintiff to place in evidence its lien claim, but we did not rule upon the claim of Proserpi. Landers Lumber & Cement Co. v. Short et al., 225 Mo. App. 416, 37 S.W.(2d) 981.

Thereafter, on the 25th day of May, 1933, the case was again tried before the circuit court of Polk county, to which the cause had been transferred on change of venue, and the trial court found the issues in favor of defendants Grant O. Short and Etta Short and against claimant Proserpi, who has again appealed to this court. The rights of the original plaintiff, the Landers Lumber Company, are not involved on this appeal. This case was on our docket for the March term, 1934, but was continued on motion. At that time M. H. Galt, as trustee, was substituted for appellant Proserpi. For convenience we shall hereinafter refer to Proserpi as claimant and Grant O. Short and Etta Short as defendants.

Claimant's brief on this appeal contains but one assignment of error, to the effect that, under the admissions in evidence and the law, judgment should have been for claimant and his lien sustained. There is a further point raised by defendants and briefed on both sides relative to whether or not the lien claim was barred by the statute of limitations.

Our attention will first be directed to the latter question, which we consider decisive. The amended answer of H. Proserpi, upon which he seeks to establish his lien against the property of defendants for material furnished, states, among other things, that his demand and indebtedness accrued on the 14th day of October, 1929, and that within four months thereafter, to wit, on the 10th day of December, 1929, he filed his lien claim in the office of the circuit clerk of the circuit court of Greene county; that the amount of said claim was $302.75; that in December, 1929, he filed suit on said claim in justice court seeking to enforce said lien, and obtained a judgment from which defendants Short appealed to the circuit court; that this appeal was pending at the May term, 1930, of the circuit court of Greene county, when the present suit was instituted by the Landers Lumber Company aforesaid; that thereafter, at said May term of the circuit court, H. Proserpi, filed an answer again seeking to establish said lien. After the first trial, claimant filed an amended answer, February 14, 1933. To this amended answer, defendants Short, on May 25, 1933, filed an amended answer which sets up, among other things, a plea of the bar of the statute of limitations, the same being section 7232, R. S. Mo. 1919 (now section 3172, R. S. Mo. 1929, Mo. St. Ann. § 3172, p. 5001), which provides that all actions shall be commenced 90 days after the filing of the lien and that no lien shall continue after said 90 days unless action shall be instituted as therein specified. Claimant Proserpi filed a reply to this answer in which it was stated that on the 25th day of June, 1930, the defendants Short asked...