Mann v. Schroer

• Decision Date: 31 July 1872
• Citation: 50 Mo. 306
• Parties: MARTIN W. MANN, Defendant in Error, v. JOHN G. SCHROER, Plaintiff in Error.
• Court: Missouri Supreme Court

50 Mo. 306

MARTIN W. MANN, Defendant in Error,

v.JOHN G. SCHROER, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1872.

Error to Henry Circuit Court.

J. La Due, for plaintiff in error.

I. The original petition, so far as enforcing said pretended lien was concerned, was totally defective, and no special judgment could have been rendered thereon. That being the case, the law does not allow the filing of an amended petition constituting an entirely new cause of action, after it is too late to bring said action in an original suit.

II. The general judgment rendered in this cause in the Circuit Court operated to destroy, and release the property from, the lien (if any there was at that time), and that general judgment never having been disturbed, vacated or set aside, no lien on the property has ever attached the second time by virtue of the subsequent proceedings of the court below pretending to correct the original judgment.

III. There certainly was no lien on the real estate described in the amended petition during the six months intervening from the rendition of the general judgment to the time of the pretended special judgment; and in the meantime the property changed hands. Can it be contended that a new lien could be created by the court six months thereafter?

IV. In this case it was impossible to except or object to the proceedings in the court in the attempt to reform or correct the original judgment, as no notice was given to the defendant in the court below or his attorney, and he knew nothing of the proceedings until after the judgment of the court.

F. P. Wright, for defendant in error, relied upon Gibson v. Chouteau's Heirs, 45 Mo. 171.

ADAMS, Judge, delivered the opinion of the court.

This was an action brought on a mechanic's lien. In his original petition the plaintiff misdescribed the property on which he filed the lien. At a subsequent term, and more than ninety days after the lien was filed, he filed an amended petition correcting the description. The defendant filed answer, and among other things set up that the suit was not commenced within ninety days after the lien was filed.

The original petition was filed and the writ of summons was issued within the ninety days, and the amended petition was only a continuance of the original proceeding, and not the commencement of a new action. The court tried the case at the October term, 1870, and gave judgment for the plaintiff. No motion was made to set aside the judgment, or for a new...