McCafferty v. Clay

• Decision Date: 02 July 1929
• Docket Number: No. 20159.,20159.
• Citation: 18 S.W.2d 569
• Parties: McCAFFERTY v. CLAY et al.
• Court: Missouri Court of Appeals

18 S.W.2d 569

McCAFFERTY v. CLAY et al.

No. 20159.

St. Louis Court of Appeals. Missouri.

July 2, 1929.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Harry L. McCafferty against Eugene G. Clay and others. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Peter T. Barrett, of St. Louis, for appellant.

Charles E. Morrow and N. Murry Edwards, both of St. Louis, for respondents Clay.

Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent Nickel Savings, Investment & Building Association.

BENNICK, C.

On March 1, 1926, plaintiff filed his petition in the circuit court of the city of St. Louis, against Eugene G. Clay and Eleanor N. Clay, his wife, and Nickel Savings Investment & Building Association, as defendants, wherein he sought to subject certain real estate, described in the petition and owned by the Clays, to a mechanic's lien for work, labor, and materials in the amount of $2,404.96, alleged to have been furnished by him in connection with the erection of a bungalow and garage; and, further, to have the lien of the building association under a deed of trust held by it declared to be junior or subordinate to plaintiff's lien.

The following day summons was issued for all three defendants, returnable to the April, 1926, term of court. At the return term of the writs, and on April 3, 1926, the sheriff made his return, certifying that he had obtained due service upon the building association, but that the Clays had not been found.

On June 24, 1926, and during the June, 1926, term of court, defendant building association filed its motion to dismiss plaintiff's cause of action, upon the ground that the original summons had not been served upon the Clays; that plaintiff had not sued out alias summons at the return term of the original writs, which was the preceding April, 1926, term, and that such term had expired; that, by failing to follow up the original writs which had been returned non est as to the Clays, plaintiff had abandoned his action as to them, and the cause was discontinued as to them; and that plaintiff could not proceed further against the building association alone, and, in the absence of the Clays as parties to the action, to have the lien of the building association declared to be junior to his lien against the property of the Clays, which he would be unable to establish.

No action was taken by the court upon such motion; and on September 10, 1926, which was yet during the June, 1926, term of court, alias summons were ordered to issue for the Clays, returnable to the October, 1926, term, and seemingly were served upon them, although the record does not disclose the date or manner of service.

On September 24, 1926, and during the June, 1926, term, the Clays, expressly limiting their appearance for the purpose of their motion, filed a motion to set aside the order of the court for the issuance of alias summons, and to quash the sheriff's returns thereon, reading as follows:

"Come now Eugene G. Clay and Eleanor N. Clay, defendants in the above-entitled cause, and appearing specially and only for the purpose of this motion, move the court to set aside the order made on the ____ day of September, 1926, ordering an alias summons to issue for these defendants, returnable to the October, 1926 Term of this court, and to quash the return made on said alias writs.

"For grounds of this motion, defendants state that in this suit plaintiff seeks to enforce a mechanic's lien against the property of these defendants for an alleged indebtedness claimed to be due plaintiff; that this suit was filed and made returnable to the April, 1926, Term of this court, and process was issued by the clerk of this court on March 2nd, 1926, for these defendants, returnable to said April, 1926, Term of court; that there was no service had upon these defendants to the April, 1926, Term of court, and the Sheriff made a non est return as to these defendants to said April Term of court; that there have been no alias writs of process ordered to issue for these defendants returnable to the next succeeding term, to wit, the June Term, 1926, of this court.

"Defendants further state that as there was no regular process issued for these defendants for the intermediate April Term, 1926, of this court, that this action was discontinued and abated upon the beginning of the June, 1926, Term of court as to these defendants, and this court was therefore without authority to issue said alias writs of summons on the 10th day of September, 1926, for these defendants, returnable to the October, 1926, Term of court.

"Wherefore defendants Eugene G. Clay and Eleanor N. Clay respectfully move the court to set aside said order made on the 10th day of September, 1926, ordering alias writs of summons for these defendants, and to quash the return made on said alias writs of summons."

On September 29, 1926, and during the June, 1926, term, plaintiff filed his motion to strike the above motion from the files.

On the same day all motions pending in the case were heard by the court and taken under advisement; and on June 29, 1927, and during the December, 1926, term, the court sustained the motion of defendant building association to dismiss, overruled plaintiff's motion to strike the motion of the Clays from the files, and sustained the motion of the Clays to set aside the order that alias summons issue and to quash the returns of the sheriff thereon. The court further ordered that the cause be dismissed as to all three defendants, at plaintiff's costs, and that execution should issue therefor.

Within four days thereafter, plaintiff filed his motion for a new trial, and, the same being overruled, he has perfected his appeal to this court; and now assigns as grounds for reversal, inter alia, that the court erred in sustaining the motion of the Clays to set aside the order for the issuance of alias summons to them, and to quash the sheriff's returns thereon, and in sustaining the motion of defendant building association to dismiss plaintiff's cause of action.

Obviously the propriety of the sustention by the court of the motion of defendant building association to dismiss the action depends wholly upon the question of whether a discontinuance had been worked by operation of law as to the Clays, in consequence of which such point may abide our decision as to whether the motion of the Clays to set aside the order for the issuance of alias summons to them, and to quash the sheriff's returns thereon, was well taken.

Undoubtedly the court based its several rulings upon the then unquestioned decision of the Kansas City Court of Appeals in Weaver v. Woodling, 220 Mo. App. 970, 272 S. W. 373, in which it was held that the failure of the plaintiff to sue out an alias summons at the return term of the original writ returned non est discontinued the case by operation of law, and divested the court of further jurisdiction to proceed.

The case of Ferber v. Brueckl, 7 S.W.(2d) 279,...