Mansfield Lumber Co. v. Johnson

• Decision Date: 07 October 1935
• Docket Number: No. 5522.,5522.
• Parties: MANSFIELD LUMBER CO. et al. v. JOHNSON et al.
• Court: Missouri Court of Appeals

91 S.W.2d 239

MANSFIELD LUMBER CO. et al. v. JOHNSON et al.

No. 5522.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Rehearing Denied March 6, 1936.

Appeal from Circuit Court, Jasper County; Wilbur J. Owen, Judge.

Suit by the Mansfield Lumber Company and others against Della Johnson and others. From a judgment for plaintiffs, named defendants appeal.

Reversed and remanded with directions.

O. R. Puckett, of Pineville, and Haywood Scott, of Joplin, for appellants.

A. R. Dunn, of Neosho, Howard Gray, of Carthage, and J. T. Pinnell and J. M. Tatum, both of Pineville, for respondents.

BAILEY, Judge.

This is a suit to establish certain mechanic's liens under the provisions of art. 3, chapter 25, R.S.Mo.1929 (Mo.St.Ann. c. 25, art. 3, §§ 3156-3189, pp. 4972-5015). The cause originated in the circuit court of McDonald county, by the filing of a petition on the part of the Mansfield Lumber Company against William H. Evans, Della Johnson et al., for materials furnished and used in the erection of certain buildings, consisting of a garage, filling station, and a partially erected hospital, drug store, and dwelling. This suit was filed February 11, 1932. Thereafter, on February 12, 1932, plaintiffs Lewis Mills et al., filed a separate suit in thirteen counts, each count being for labor performed on the buildings described in the petition and each count setting forth the separate claim of each plaintiff. It further appears that W. H. Evans was not originally made a party to this latter suit. Thereafter, plaintiffs in this second suit filed what is termed an interpleader petition in the suit which they themselves had instituted, praying to be made parties to the first suit filed by the Mansfield Lumber Company. No action was taken on the interpleader petition. Defendant Della Johnson for herself alone filed answers in each of the suits and upon her application a change of venue was granted to the circuit court of Jasper county, Mo., in both suits. In that court the two suits were treated as having been consolidated, although no order of consolidation, or order permitting plaintiffs in the second suit to be made parties to the first suit of the Mansfield Lumber Company was at any time made. On October 18, 1933, plaintiffs in the second suit filed an amended petition in which W. H. Evans was made a party. On the same day defendant Della Johnson filed a motion to strike the amended petition on the ground that it constituted a departure, which motion was by the court overruled. Thereafter, on April 22, 1933, testimony was taken on defendant Della Johnson's motion to strike the name of W. H. Evans from the said amended petition, which motion was likewise overruled. The two cases, tried as one, came on for trial on September 26, 1933, and resulted in a judgment for plaintiffs in both suits, establishing certain liens, etc., which judgment is hereinafter more fully set out. Defendant Della Johnson alone appealed to this court.

There are fifty-two assignments of error in this case, some of which, however, have not been briefed and will be treated as abandoned. In considering so extensive an array of alleged errors, it is more convenient to state such facts and portions of the record as may be involved under each assignment rather than attempt a complete statement of the case at one time.

It is first urged that the so-called labor lien claimants' suit of Lewis L. Mills et al. v. Della Johnson could not be consolidated with the Mansfield Lumber Company suit, which, as heretofore stated, was first filed, because the plaintiffs in the two suits were not the same, citing section 943, R.S.Mo.1929 (Mo.St.Ann. § 943, p. 1215). The statute referred to could have no application to mechanic lien suits, where an equitable action has been instituted. Section 3181, R.S.Mo.1929 (Mo.St. Ann. § 3181, p. 5010), makes provisions for all parties having claims of any kind, including mechanics' liens, against the property subject to the lien, to be joined as parties, either as plaintiffs or defendants, in an equitable action. Section 3183, R.S. Mo.1929 (Mo.St.Ann. § 3183, p. 5012), provides that after such equitable action shall have been instituted, all other mechanic's liens suits then pending shall be stayed and no further prosecuted and that no separate suits shall thereafter be brought upon any mechanic's lien or claim against said property, but the rights of all persons shall be adjusted and enforced in said equitable action. If, therefore, the labor lien claimants in this case may be considered as having been made parties plaintiff to the equitable action (a question hereinafter considered), then, of course, the fact the plaintiffs in the two suits were not the same would be no bar to their joining their claims in the same equitable action.

The trial court, among other things, made a finding of facts as to the consolidation of the two suits, which is as follows:

"The court further finds that said labor claimants on August 22, 1932, filed an application requesting permission, under Section 3181, R.S.1929, to be made parties in said lumber company suit in the Circuit Court of McDonald County.

"The court further finds that such action was taken as resulted in the rights of all the parties in both pending actions to be treated as, and their respective rights and privileges to be determined in one action, as though said two actions had been consolidated into one, and the court finds that such action on the part of the Circuit Court of McDonald Couny so resulted that no substantial rights of the original contractor, the land owner, or anyone having any interest in said land, was thereby prejudiced.

"The court further finds that the parties and their attorneys, in making application for a change of venue and all subsequent stipulations in said cause and proceedings therein treated and considered said actions in such a manner as though legally consolidated."

In regard to this particular finding of fact on the part of the circuit court, defendant Della Johnson presents seven assignments of error, all of which go to the same question. Assignment No. III raises the point which, we think, is decisive of the whole question and is as follows:

"The court erred in holding, by its judgment and decree, that the plaintiffs in the labor lien suit of Lewis L. Mills, et al, plaintiffs, v. Della Johnson, et al, defendants, were not required to intervene or file any intervening petition in or by order of court be made parties to the suit in which the Mansfield Lumber Company is plaintiff and William H. Evans, et al, are defendants."

We are forced to the conclusion that on the record made this assignment is well taken. The Mansfield Lumber Company as heretofore indicated instituted its suit to enforce its lien on February 11, 1932. That suit was an equitable action as provided by section 3180, supra (Mo.St. Ann. § 3180, p. 5008). After the institution of such suit, no other or separate suit could be brought to enforce a mechanic's lien against the same property. Section 3183, supra. The equitable action becomes the exclusive remedy. Section 3186 (Mo.St.Ann. § 3186, p. 5014). But Lewis L. Mills and the other labor claimants thereafter brought such a suit on February 12, 1932. What was the status of the second suit? Since the statute declares that no such separate suit shall be brought and makes the quitable remedy exclusive of all other remedies, the bringing of such a suit was of no force and effect. Even the filing of an answer to such action, which was done in this case by one of the defendants, could not breathe life or vitality into the dead petition. Badger Lumber Co. v. Robertson, 222 Mo.App. 211, 297 S.W. 99. It is true that plaintiffs Lewis L. Mills et al. filed what is termed an interpleader petition, in their own case, praying to be made parties plaintiff in the case of Mansfield Lumber Company v. Della Johnson et al., the original equitable suit. The statutes heretofore referred to unquestionably require that such interpleader petition be filed in the equitable suit and not in the suit subsequently filed. However, the trial court, under certain conditions, by its own motion could have made Lewis L. Mills et al., parties to the Mansfield Lumber Company suit. Section 3181, R.S.Mo. 1929 (Mo.St.Ann. § 3181, p. 5010). But the trial court made no order whatever in regard to the interpleader petition. No pleading of any kind was filed in the Mansfield Lumber Company case by Lewis L. Mills et al. They are therefore not parties to that suit unless the procedure specifically provided by the mechanic's lien law shall be ignored and an entirely different procedure permitted.

We do not consider the case of Woodling v. Westport Hotel Operating Co., 227 Mo. App. 1231, 63 S.W.(2d) 207, cited by respondents, in point with the case at bar either on the facts or the legal questions involved. In that case, after the filing of an equitable lien suit by one of the lien claimants (Woodling), interveners in that suit, who had previously filed a suit to enforce their mechanic's lien against the hotel property, filed a motion in the equitable lien suit to be made parties defendant in the Woodling suit. This motion was sustained as it should have been under the statute above referred to. Thereupon the interveners filed their intervening petition asking for a lien based upon their original lien statement. On trial of that issue their lien was denied upon the theory that they had not become parties to the equitable lien suit within ninety days from the time of the filing of their lien statement as provided by section 3187, R.S.Mo.1929 (Mo.St.Ann. § 3187, p. 5015). The Appellate Court held that the ninety-day provision was a statute of limitation and that since the statute had not been pleaded by defendants, the defense of the statute had been waived. There was no question of consolidation of actions in that case. The interveners had filed a proper...