Macklind Inv. Co. v. Ferry

• Citation: 108 S.W.2d 21,341 Mo. 493
• Parties: Macklind Investment Company, a Corporation, Appellant, v. Newell S. Ferry
• Decision Date: 30 July 1937
• Court: United States State Supreme Court of Missouri

108 S.W.2d 21

341 Mo. 493

Macklind Investment Company, a Corporation, Appellant, v. Newell S. Ferry

Supreme Court of Missouri

July 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge.

Affirmed.

Dunbar & Dubail and Bryan Wilson for appellant.

(1) The owner and general contractor is a necessary party to a suit to establish a mechanic's lien. Sec. 3165, R. S. 1929. (a) Union Realty & Construction Company was dissolved and ceased to exist on January 1, 1931, prior to the entry of judgment in the case of A. Louden Brick Contracting Company v. Union Realty & Construction Company, No. 152,150-B. Sec. 4619, R. S. 1929; Estel v. Midgard Inv Co., 46 S.W.2d 193. (b) The corporation having been dissolved, no judgment could be rendered against it and any judgment purporting to be rendered against it is void. 9 Fletcher Cyc., sec. 4240; Mumma v. Potomac Co., 8 Pet. 281, 8 L.Ed. 945; First Natl. Bank v. Colby, 21 Wall. 609; Pendleton v. Russell, 144 U.S. 640, 12 S.Ct. 743, 36 L.Ed. 574; Venable Bros. v. So. Granite Co., 135 Ga. 508, 69 S.E. 822, 32 L. R. A. (N. S.) 446; Crossman v. Vivienda Water Co., 150 Cal. 575, 89 P 335; Hawley v. Bonanza Queen Mining Co., 111 P 1073; Salton v. New Beeston Cycle Co., 1 Ch. 43; Meramec Spring Park Co. v. Gibson, 268 Mo. 349, 188 S.W. 179; Scanlan v. Cranshaw, 5 Mo.App. 337; Weller Mfg. Co. v. Eaton, 81 Mo.App. 657; Cole v. Parker-Washington Co., 276 Mo. 220, 207 S.W. 749; Hecht Bros. Clothing Co. v. Walker, 35 S.W.2d 372. (c) The last board of directors became its trustees. Sec. 4622, R. S. 1929. (d) A valid judgment against the general contractor, Union Realty & Construction Company, or its trustees, was a prerequisite to the validity of the mechanic's liens. Wibbing v. Powers, 25 Mo. 599; Reese v. Cibulka, 68 S.W.2d 902. (2) The judgment in A. Louden Brick Contracting Company v. Union Realty & Construction Company et al., being void, is subject to collateral attack. The invalidity of the judgment not appearing on its face, injunction against the execution of the judgment is a proper method of attack. Sec. 1519, R. S. 1929; Verdin v. St. Louis, 131 Mo. 26, 33 S.W. 480, 36 S.W. 52; Henman v. Westheimer, 110 Mo.App. 191, 83 S.W. 101; Mathias v. Arnold, 191 Mo.App. 352, 178 S.W. 264. (3) The defendant acted at his peril in making the sale pending this suit. 32 C. J. 377; Holden v. Alton, 179 Ill. 318, 53 N.E. 566; Sanders v. Dixon, 114 Mo.App. 229, 89 S.W. 577. (4) The testimony admitted by the lower court as to the first stockholders and directors of plaintiff was inadmissible. (a) Because there was no pleading to justify the admission. (b) Because the plaintiff and its members were separate and distinct entities. 14 C. J. 52; 7 R. C. L., pp. 25, 26; State ex rel. Juvenile Shoe Corp. v. Miller, 217 Mo.App. 216, 272 S.W. 1066. (5) This plaintiff was not bound by the evidence produced in the mechanic's lien case prior to service on it. 50 C. J. 464; Dion v. Dion, 37 Que. Super. 84; 18 C. J. 478; Hendricks v. Calloway, 211 Mo. 536, 111 S.W. 60; Millspaugh v. Ry. Co., 138 Mo.App. 31, 119 S.W. 993; Gurley v. Transit Co., 259 S.W. 895.

Seneca C. Taylor for respondent.

(1) Jurisdiction of subject matter may be raised at any stage of the case, in any court, either by court or by counsel. Lohmeyer v. St. Louis Cordage Co., 113 S.W. 1108, 214 Mo. 685; Dahlin v. Mo. Commission for the Blind, 262 S.W. 420. (2) A division of the Circuit Court of the City of St. Louis, Missouri, when a cause is assigned to it, becomes as to that cause a whole court, and has as exclusive jurisdiction of it as a circuit court of an adjoining county has of a cause pending in it. Goddard v. Delaney, 181 Mo. 581; State ex rel. v. Eggers, 152 Mo. 485; Voulaire v. Voulaire, 45 Mo. 602; Hahl v. Wabash Ry. Co., 119 Mo. 337. (3) Every court has the exclusive control of its process, and no other court has a right to interfere with or control it. It is the general policy and wisdom of the law that one court shall not interfere with or attempt to control the process of another court of co-ordinate jurisdiction. An action to stay process must be held in the same court from which the process issued. Division No. 2 (equity) of the Circuit Court of the City of St. Louis, Missouri, has no jurisdiction to enjoin the process and orders issued by Division No. 3 (equity) of the Circuit Court of the City of St. Louis, Missouri. Bank v. Poole, 160 Mo.App. 141; McDonald v. Tieman, 17 Mo. 603; Scrutchfield v. Sauter, 119 Mo. 615; Mellier v. Bartlett, 89 Mo. 134; Pettus v. Elgin, 11 Mo. 263; State ex rel. v. Riley, 127 Mo.App. 469; Kinealy v. Staed, 55 Mo.App. 176. (4) The avowed purpose and object of the act authorizing equitable mechanic's lien suits was to have the rights of all persons interested in the property, including owners of any interest in or leasehold thereon, determined and adjudicated and protected and enforced in such suit, and such remedy and suit is exclusive -- even to having an injunction against the plaintiff in the equitable mechanic's lien suit. Such exclusive jurisdiction extends to the final disposition by the final judgment of the court therein of the proceeds of the sale of said property. Laws 1911, pp. 314-316; R. S. 1929, secs. 3180-3186; Dezino v. Drozda Realty Co., 13 S.W.2d 663; Badger Lbr. Co. v. Robertson, 297 S.W. 99, 222 Mo.App. 211; McPherin v. Lumbermen's Supply Co., 242 S.W. 136; Coerver v. Crescent Lead & Zinc Co., 286 S.W. 6; Allen Estate Assn. v. Boeke, 254 S.W. 866; Hydraulic Press Brick Co. v. Lane, 200 S.W. 310; Evans v. Dockins, 40 S.W.2d 508; Schroeter Bros. Hdw. Co. v. Croatian Sokol, 58 S.W.2d 1002; Richards Brick Co. v. Wright, 82 S.W.2d 274.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Action to enjoin the sale of real estate under a special execution issued in an equitable mechanics' lien suit which involved five deeds of trust securing notes held by plaintiff. The lien suit also involved other deeds of trust not concerned here. On motion by defendant, plaintiff's bill was dismissed and this appeal followed.

It is suggested in a motion filed here since the appeal in this cause, that the charter of plaintiff, appellant here, was forfeited by the State on January 1, 1936, under Section 4619, Revised Statutes 1929 (Mo. Stat. Ann., sec. 4619, p. 2049), and that plaintiff corporation was then dissolved. There is no denial of this suggestion. Along with the suggestion is a motion that the statutory trustees (in case of dissolution) of appellant corporation (under Sec. 4622, R. S. 1929) be substituted here as appellants, and their written entry of appearance was filed. The motion and entry of appearance were taken with the case when argued and submitted. It is sufficient to say that the motion is sustained, and that the statutory trustees as set out therein are substituted as appellants in lieu of the dissolved corporation. However, we do not deem it necessary to change the style of the case.

The following appears from plaintiff's petition and the judgment in the mechanics' lien case, which judgment was introduced at the hearing on the motion to dismiss. The present case has its background in the mechanics' lien case, the style of which was A. Louden Brick Contracting Company v. Union Realty & Construction Company et al., which was an equitable mechanics' lien suit under Sections 3180 et seq., Revised Statutes 1929 (Mo. Stat. Ann., secs. 3180 et seq., p. 5008). In the mechanics' lien suit the Circuit Court of St. Louis adopted the report and recommendations of a referee and allowed claims aggregating $ 38,167.30, based on several mechanics' lien claims in addition to the claim of A. Louden Brick Contracting Company, and made the judgment a special lien on lots 6 to 12 inclusive, block 2, Motor Heights, city block 5732, and appointed defendant Ferry in the present cause as special commissioner to sell said property to satisfy the liens. One of the defendants in the Louden case appealed from the judgment in that case in favor of the lien claimants, and against the deeds of trust holders, as to priority, but that appeal was not perfected and was dismissed. The Union Realty & Construction Company owned the real estate mentioned and entered into the various contracts for the material and labor that went into the improvements thereon, upon which material and labor furnished, the various lien claims are based. The total principal of the notes held by plaintiff and secured by the five deeds of trust, is $ 25,500.

Plaintiff was served in the Louden case by publication, and was designated as one of the unknown holders of notes secured by deeds of trust on the property concerned. The judgment in that case was entered November 21, 1933, and it is alleged in the present case that "on the 1st day of January, 1931, the charter of the Union Realty & Construction Company (the contractor in the various mechanics' lien claims and owner of the lots) was forfeited by the State of Missouri under which State it was incorporated, and that on such date its corporate existence and rights were forfeited and canceled and the corporation dissolved," and "that the proper representatives of said Union Realty & Construction Company were not substituted before the judgment or order of sale in said cause, and that said judgment against said Union Realty & Construction Company was null and void and of no force and effect," and that there is "no judgment on which special execution can be had enforcing said mechanics' liens and that a sale or sales under said judgment by the defendant herein would be null and void and a cloud upon the interest of this plaintiff."

The sale by defendant, special commissioner in the Louden mechanics' lien case, was set for August 9, 1934, and plaintiff filed his...