Matthews v. Stephenson

• Decision Date: 19 May 1913
• Citation: 157 S.W. 887
• Parties: MATTHEWS v. STEPHENSON et al.
• Court: Missouri Court of Appeals

157 S.W. 887

MATTHEWS v. STEPHENSON et al.

Kansas City Court of Appeals. Missouri.

May 19, 1913.

Rehearing Denied June 16, 1913.

1. MECHANICS' LIENS (§ 214) — WAIVER — INTENTION.

Where a contractor sued to enforce a mechanic's lien and obtained judgment against all defendants without service of summons upon a confession of judgment by the owners, which the court understood to be entered on behalf of all the defendants, and the judgment was later, on motion of the holder of a trust deed, set aside as to all defendants except the owners, and summons was thereupon issued and served on the other defendants, who appeared and litigated the questions as though no judgment had been rendered, the former judgment against the owners was not a waiver of the right to a lien against the other defendants, since there was no intent to waive, either express or implied.

2. MECHANICS' LIENS (§ 214) — WAIVER — JUDGMENT AGAINST OWNERS.

The rule that a mechanic's lien cannot be obtained on an account that has been converted into a judgment is based upon the requirement of the Mechanic's Lien Statute (Rev. St. 1909, § 8217), that both the lien and the suit to enforce it shall be founded upon the account, and does not apply to a judgment rendered against the owner before service of summons on the other defendants, who afterward are served and litigate the entire question without regard to the former judgment.

3. MECHANICS' LIENS (§ 260) — LIMITATION OF ACTIONS — COMMENCEMENT OF SUIT.

A suit to enforce a mechanic's lien, in which judgment was obtained against the owners by confession, and summons thereafter issued against the holder of a trust deed more than five months after the suit was filed, dates from the time of the filing of the suit, and not from the time of the issuance of the summons; it appearing that no direction was given to the clerk to hold or delay the summons.

4. MECHANICS' LIENS (§ 252) — LIMITATION OF ACTIONS — COMMENCEMENT OF SUIT.

Nor was the issuance of the summons against the holder of the trust deed the institution of another suit.

5. JUDGMENT (§ 342) — AUTHORITY TO VACATE — EXPIRATION OF THE TERM.

The court has no authority to set aside, upon motion, a judgment rendered at a former term against parties who were not served.

Johnson, J., dissenting.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

Action by Charles D. Matthews against Caroline B. Stephenson and Marion Rose and others. Judgment for the plaintiff, and defendant Marion Rose appeals. Affirmed.

Chas J. Walker, of Columbia, for appellant. W. H. Rothwell, of Moberly, for respondent.

TRIMBLE, J.

Suit on account to enforce a mechanic's lien for the sale and installation of a heating plant in a residence owned by defendant Caroline B. Stephenson. The suit is against Mrs. Stephenson, her husband, W. G. Stephenson, and Marion Rose, the holder of a deed of trust thereon. There were other defendants, who held deeds of trust on the property; but, as the controversy here is between plaintiff and defendant Rose only, the names and interests of those other defendants need not be stated. The facts are not in dispute. Under contract with the owner, Mrs. Stephenson, plaintiff sold and installed a hot-water heating plant in her residence, finishing the work December 19, 1910. Not receiving his pay, he filed his statement for a mechanic's lien June 12, 1911, within the six months allowed by law, and the sufficiency of the statement is conceded. June 19, 1911, seven days later, he brought suit against the owners of the property for the sum due on the lien account and to enforce the lien, making all the defendants above referred to parties therein.

The suit was commenced by filing the petition with the clerk in the ordinary way, and no direction was given him to withhold or delay issuing summons. The owners of the property authorized an attorney to confess judgment for them, and on June 21, 1911, two days after the institution of the suit, he appeared in court and did so. The court, thinking that he appeared for all defendants, rendered judgment against the owners for the amount due and enforced same as a lien against all the defendants. No summons had been served upon these other defendants, or upon any defendant for that matter, and it is undisputed that no one really had any authority to confess judgment for any one except the owners. The judgment against all defendants stood thus until the next term without attack from any one. At the next term, however, defendant Rose, October 27, 1911, filed a motion to vacate said judgment. Said motion is not preserved in the record, and it does not appear whether said motion asked that the judgment be set aside as to all the defendants, or only as to those not served. It is presumable, however, that it asked that it be set aside only as to the defendants not served, since the order of court, made November 27, 1911, recites that the motion is sustained and the judgment is ordered set aside as to the defendants not served, naming them, on the ground that none of said named defendants had been served with process. The order, however, did not set aside the judgment as to the Stephensons. Thereupon summons was issued for Rose and the other defendants who had not appeared, which was returnable to the next or January, 1912, term. At that term defendant Rose appeared and filed answer, admitting that Mrs. Stephenson was the owner of the property at the time of the filing of the petition, admitting that $109.45 had been paid on plaintiff's account as in the petition alleged, admitting that he was the holder of a deed of trust as stated in said petition, but denying each and every other allegation in said petition contained, and alleging that plaintiff had no contract with the owners to install the plant. Said answer then proceeded to allege, as a bar to the action, that suit had not been commenced within 90 days after the filing of the lien, as required. And said answer further set up the judgment theretofore rendered, which had not been set aside as to the Stephensons, pleading the same as a bar to any further proceeding. These allegations of new matter were denied in the reply. Thereupon a trial was had January 6, 1912, before the court; a jury being waived.

The plaintiff did not treat the judgment theretofore rendered against the Stephensons as a finality, so far as Rose was concerned; nor did he rely in any way upon said judgment, or treat it as establishing his account. On the contrary, he introduced his evidence in full showing his contract with the owners, the dates of the installation of the plant and when the last work was done, the filing of the lien and everything else required to obtain a judgment and lien. In other words, he proceeded with his evidence the same as if no former judgment had been obtained against the owners, and defendant Rose had full opportunity to meet and controvert the evidence and litigate all the issues created by the petition, answer, and reply. But he offered no evidence to controvert the correctness of the account. Nor does he now contend that there was anything omitted or insufficient in the steps taken to establish a lien. His main contention is that, as the judgment against the owners was obtained at the June, 1911, term of court, the account sued on became merged in the judgment, and the right to a lien was thereby lost.

At the close of all the evidence the court to...