Manchester Iron Works v. E. L. Wagner Const. Co.

• Citation: 107 S.W.2d 89,341 Mo. 389
• Parties: Manchester Iron Works, Inc., a Corporation, Plaintiff, v. E. L. Wagner Construction Company, a Corporation, et al., Defendants, Theodore J. Nolte, Laclede Bond & Mortgage Company, a Corporation, Samuel Rosenberg, M. Kauffman, J. I. Epstein, Jr., and Louis J. Fornoff, Defendants-Appellants, Modern Tile Company, a Corporation, H. J. Wright, Doing Business as H. J. Wright Painting Company and C. A. Myers, Doing Business as C. A. Myers Hardwood Flooring Company, Defendants-Respondents
• Decision Date: 30 June 1937
• Court: Missouri Supreme Court

107 S.W.2d 89

341 Mo. 389

Manchester Iron Works, Inc., a Corporation, Plaintiff, v. E. L. Wagner Construction Company, a Corporation, et al., Defendants, Theodore J. Nolte, Laclede Bond & Mortgage Company, a Corporation, Samuel Rosenberg, M. Kauffman, J. I. Epstein, Jr., and Louis J. Fornoff, Defendants-Appellants, Modern Tile Company, a Corporation, H. J. Wright, Doing Business as H. J. Wright Painting Company and C. A. Myers, Doing Business as C. A. Myers Hardwood Flooring Company, Defendants-Respondents

Supreme Court of Missouri

June 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Robert W McElhinney, Judge; Opinion filed at September Term 1936, April 21, 1937; motion for rehearing filed; motion overruled at May Term, 1937, June 30, 1937.

Affirmed.

Thomas Bond and Otto O. Fickeissen for appellants.

(1) The court erred in ordering these cases consolidated: (a) Because there can be no such thing as the consolidation of equitable mechanic's lien suits. The statute requires that all rights and interests be determined in the first suit, and that all other suits be stayed or prohibited. Secs. 3180 3181, 3183, R. S. 1929; Mansfield Lbr. Co. v. Johnson, 91 S.W.2d 242; Richards Brick Co. v. Wright, 82 S.W.2d 279. (b) Because there being no identity of parties and the actions not being on liquidated demands, they could not be consolidated under the Missouri Code of Civil Procedure. Sec. 943, R. S. 1929; Anderson v. Gaines, 156 Mo. 668; Priddy v. Mackenzie, 205 Mo. 200; Jegglin v. Orr, 224 Mo.App. 776. (2) The court erred in attempting to divide the claim of Modern Title Company into five parts, and in attempting to allocate arbitrary percentages thereof to each of the five buildings. (a) Where separate buildings on contiguous lots are erected under one general contract one lien may be filed on all the property for the entire account. Sec. 3189, R. S. 1929. (b) Or a separate lien may be filed against each lot and building. Kick v. Doerste, 45 Mo.App. 138; Bickel v. Roeder, 81 Mo.App. 656. (c) If a separate lien is sought against each lot the contractor must apportion the work and materials between them. Christopher & Simpson Co. v. Kelley, 91 Mo.App. 97. (d) Modern Tile Company did not seek separate liens and it did not apportion the work and materials; it elected to proceed under Section 3189, supra, and filed one lien against the five buildings on the entire account. (e) The attempt to divide the lien was therefore outside the pleadings and coram non judice. Texas Empire Pipe Line Co. v. Stewart, 35 S.W.2d 632; Sutton v. Anderson, 31 S.W.2d 1036. (f) And was not supported by evidence. Schulenberg v. Prairie Home Institute, 65 Mo. 296. (3) A suit to enforce a mechanic's lien must be commenced within ninety days after the filing of the lien account. Sec. 3172, R. S. 1929; La Crosse Lbr. Co. v. Powell, 247 S.W. 1024; Miner v. Tilley, 54 Mo.App. 627. (4) Such a suit filed on the ninety-first day is barred, though the ninetieth day be Sunday. Miner v. Tilley, 54 Mo.App. 627; Boisot on Mechanic's Liens, p. 756, sec. 725. (5) Rule 4 of Section 655, excluding Sunday from the count, does not apply in computing time provided by statute for the commencement of an action, to-wit, a Statute of Limitations. Geneva Cooperage Co. v. Brown, 98 S.W. 280; 38 Cyc. 331, note 62. (6) Neither does the rule excluding Sunday apply where its application would be repugnant to the language of the statute under construction or the legislative intent, and its application would be so repugnant in this case. Sec. 655, R. S. 1929; Geneva Cooperage Co. v. Brown, 98 S.W. 280; Sec. 3172, R. S. 1929; 37 C. J. 732. (7) A cross-bill filed in an equitable mechanic's lien suit is not a timely commencement of an action, unless it be filed within ninety days after the filing of the lien account, or unless it be filed at the time required by law in answer to a summons issued before or within such ninety-day period. Sec. 3187, R. S. 1929; Richards Brick Co. v. Wright, 82 S.W.2d 278. (8) Respondents are not entitled to a mechanic's lien because their suits and cross-bills were not shown to have been commenced within the time required by law. (9) Where a cause of action is pleaded in the alternative the pleader must declare his belief in one alternative or the other, and his ignorance of whether it be the one or the other. Sec. 798, R. S. 1929; Nichols & Shepard Co. v. Hubert Co., 150 Mo. 620; Otrich v. Railroad, 154 Mo.App. 420. (10) Where a cause of action is pleaded in the alternative both alternatives must state a cause of action else the entire pleading is fatally defective. Hewitt v. Truitt, 23 Mo.App. 443; Doyle v. Truitt, 23 Mo.App. 448. (11) The objections that a cross-bill fails to state facts sufficient to constitute a cause of action, or that the court has no jurisdiction of the action, are never waived, but may be raised at any time, in any court, and at any stage of the case. Hudson v. Cahoon, 193 Mo. 556. (12) Under one of the alternatives pleaded, to-wit, that the work and material were supplied to the contractor, the cross-bills failed to aver the giving of the ten-day notice to the owner required by Section 3175, Revised Statutes 1929, which is a jurisdictional fact essential to the existence of the lien. Hewitt v. Truitt, 23 Mo.App. 446.

E. McD. Stevens and Lee, Fricke & Lee for respondents.

(1) Consolidating the five separate equity suits and converting them into one action, in compliance with the statute, requiring but one suit for disposition of all claims and liens, was necessary and proper, since the important inquiry is the identity of the subject matter, and not particularly the parties, as they can be brought in or come in voluntarily, as here, and exact justice accorded. Sec. 3180, R. S. 1929; 1 C. J., p. 1128, sec. 325, note 61, p. 1123, sec. 313, p. 1131, sec. 334. (2) It is not disputed, but admitted, that all of the old deeds of trust were voluntarily released, canceled and satisfied on the margin of the recorder's records, which, of course, extinguished them for all purposes, and the new owners and new mortgagees acquired no superior rights or privileges, and were not successors in interest, or in anywise subrogated to the interests of the former owners and mortgage and note holders. Voelpel v. Wuenche, 74 S.W.2d 14; Early v. Smallwood, 302 Mo. 92, 256 S.W. 1053; Batson v. Peters, 89 S.W.2d 46. (3) In the count of statutory time, Sunday, where it is the last day, is expressly excluded. State ex rel. Allison v. Burford, 337 Mo. 1198, 88 S.W.2d 349. (4) The Statute of Limitations, having been waived by answer in general denial, cannot subsequently be invoked. American Radiator Co. v. Connor Plumbing & Heating Co., 277 Mo. 548, 211 S.W. 56; Conkling v. Quellmalz Lbr. & Mfg. Co., 225 Mo.App. 494, 34 S.W.2d 990; Landers Lbr. Co. v. Short, 81 S.W.2d 375. (5) The allocation made, correctly apportioning the liens and costs is proper. Early v. Smallwood, 302 Mo. 92, 256 S.W. 1053.

Frank, P. J. All concur, except Douglas, J., not voting because not a member of the court when cause was submitted.

OPINION

FRANK

This is an equitable mechanic's lien action involving three lien claims. The decree below established the liens in favor of respondents. This appeal followed.

In September, 1925, E. L. Wagner Construction Company was the owner of contiguous lots numbered 30-31-32-33-34 and 6.71 feet of lot 35 in De Mun Park, a subdivision of St. Louis County. About the time aforesaid the owner began the construction of five separate apartment buildings, one on each of said lots.

Plaintiff, Manchester Iron Works, Inc., furnished materials which went into the construction of each of the five buildings. After the buildings were completed, and on March 14, 1927, said plaintiff brought five separate equitable mechanics' lien actions, one against each of the five separate properties. For brevity we will refer to these suits as suit number one, two, three, four and five respectively. After the filing of these five separate suits, numerous other lien claimants filed separate cross-petitions in plaintiff's suit number one, some seeking a lien on one or more of the properties, others seeking a general or blanket lien on all of the properties.

On August 16, 1927, respondent, Modern Tile Company, filed a cross-petition in suit number one in which it sought one general or blanket lien on all five of the properties.

Thereafter, and on the same date, respondent, H. J. Wright, doing business as H. J. Wright Painting Company, filed a cross-petition in suit number one in which it sought a lien on the property described in suit number five.

Thereafter, and on the same date, respondent, C. A. Myers, doing business as C. A. Myers Hardwood Flooring Company, filed a cross-petition in suit number one in which it sought a lien on the property described in suits number three and five.

It should also be stated that each of the respondents filed independent suits to enforce their lien prior to the time they filed cross-actions in plaintiff's equitable action.

Some months prior to the time respondents filed their cross-petitions in suit number one, two other lien claimants filed cross-petitions in said suit, in which they each asked a general or blanket lien on all five of the properties.

All of the lien claims were compromised and settled except the claims of the three respondents herein. The cause was dismissed as to all claimants whose claims were compromised and settled, leaving the claims of respondents to be adjudicated in this proceeding.

By order of court suits number two, three, four and five were consolidated with suit number one, and the consolidated cause was sent to a referee with instructions to hear said cause and report his findings of fact and...