McConnell v. Frost

• Decision Date: 04 December 1931
• Docket Number: No. 1141.,1141.
• Citation: 45 S.W.2d 777
• Parties: McCONNELL et al. v. FROST et al.
• Court: Texas Court of Appeals

45 S.W.2d 777

McCONNELL et al. v. FROST et al.

No. 1141.

Court of Civil Appeals of Texas. Waco.

December 4, 1931.

Rehearing Denied February 4, 1932.

Error from District Court, Dallas County; Robt. B. Allen, Judge.

Suit by S. B. Frost and others against the Cyclorama Exposition Committee, Incorporated, and E. W. McConnell and others, wherein Mahaffey & Howard and others filed cross-actions, and Roscoe Libecap, trading as the Libecap Electric Company, and others intervened. To review certain judgments, E. W. McConnell and Roscoe Libecap bring error.

Affirmed in part, reformed and affirmed in part, and reversed and rendered in part.

Murphey W. Townsend, Geo. Sergeant, and R. G. Scurry, all of Dallas, for plaintiffs in error.

Bartlett, Thornton & Montgomery, Coker, Wilson, Rhea & Neel, Lee G. Carter, Turner, Rodgers & Winn, Henry Yeager, and J. L. Zumwalt, all of Dallas, for defendants in error.

ALEXANDER, J.

This action involves the right of various laborers and other lienholders to foreclose their respective liens on a cyclorama depicting the battle of Gettysburg, together with the building located on the State Fairgrounds of Dallas, in which the cyclorama was housed.

The Cyclorama Exposition Committee, Inc., a corporation, which will be hereafter referred to as the committee, held a concession from the State Fair of Texas for the exhibition of the cyclorama known as the "Battle of Gettysburg." It entered into a contract with E. W. McConnell, the owner of the cyclorama, by which the committee leased the cyclorama from McConnell for a term of three years, and agreed to erect a building on the fairgrounds for the exhibition of the cyclorama. McConnell agreed to install the cyclorama at his own expense when the building was completed. The committee executed and delivered to Mahaffey & Howard, contractors, a mechanic's lien note in the sum of $20,000 for the erection of the building. S. B. Frost and sixteen others filed this suit against the committee, alleging that they had performed labor for Mahaffey & Howard in the construction of the building, and that by reason thereof they had a lien on the building. They also sued McConnell and alleged that they had performed labor in installing the cyclorama in the building, and that by reason thereof they had a lien on the cyclorama. They alleged compliance with the statute for the fixing of their lien. Other laborers and materialmen intervened in the suit, claiming similar liens for the labor and material furnished by them. Mahaffey & Howard filed a cross-action against the committee for the balance due them as contractors under the original contract, and for extra work done in the construction of the building. The Mercantile Bank & Trust Company, as the holder of the $20,000 mechanic's lien note, filed a cross-action to foreclose its lien on the building, and McConnell filed a cross-action against the committee for the rentals due him for the lease of the cyclorama, and asked for a foreclosure of his lien on the building. Roscoe Libecap, trading as Libecap Electric Company, intervened and sued both the committee and McConnell for a debt for labor and material furnished in the erection of the building and the installation of the cyclorama, and prayed for a lien on both the building and the cyclorama as against all parties. Various bondholders prayed for a lien on the building. The case was tried before the court and resulted in a judgment in favor of the various laborers against the committee for part of the claims held by them, and for foreclosure of their respective liens on the building, and in favor of said laborers against McConnell for the balance of their claims, with a foreclosure of their liens on the cyclorama. The bank and the contractors, Mahaffey & Howard, and McConnell and various materialmen and certain bondholders were given judgments against the committee with foreclosure of their liens on the building. Roscoe Libecap recovered against the committee for a part of his claim, with a foreclosure of his lien on the building, and against McConnell for the balance of his claim, with a foreclosure on the cyclorama. E. W. McConnell and Roscoe Libecap alone have appealed.

McConnell presents as his first proposition that the court was without jurisdiction to try the case because of the amount in controversy. The plaintiffs, Frost and others, filed their suit for their debts and to foreclose their liens on both the building and the cyclorama, but did not allege the value of either the building or the cyclorama. Each one of the plaintiffs held a separate claim for the labor performed by him. All of their claims combined amounted to more than $2,000, but no one of said claims amounted to as much as $500. These claims, it is believed, could not be added together for the purpose of fixing jurisdiction in the district court. Pettus v. Weyel (Tex. Civ. App.) 225 S. W. 191 (writ ref.); Fridh v. Giberson & Kempff (Tex. Civ. App.) 21 S.W.(2d) 563. The building was located on leased premises, and the plaintiffs did not seek a foreclosure of their lien on the land on which the building was located. It was therefore not a suit to foreclose a lien on land within the purview of Revised Statutes, Article 1906. Smith v. Eureka Lumber Co. (Tex. Civ. App.) 149 S. W. 747.

However, McConnell, Mahaffey & Howard, and the Mercantile Bank & Trust Company, all defendants in the main suit, filed cross-actions, and each of them claimed an indebtedness of more than $1,000, and prayed for a foreclosure of their liens on the building. Roscoe Libecap, an intervener, filed a claim against McConnell and the committee for a debt of more than $3,000, and sought a foreclosure of his lien against all parties on both the building and the cyclorama. These claims, as presented by the cross-actions and plea of intervention, were clearly within the jurisdiction of the district court. These parties were seeking to foreclose their liens on the identical property covered by the liens asserted by the plaintiffs. Whatever may have been the status of the case at the time the suit was filed, when the defendants and interveners filed their cross-actions and pleas of intervention alleging claims within the jurisdiction of the district court, and seeking a foreclosure of their liens as against the plaintiffs and all other parties on the same property covered by plaintiffs' liens, the court acquired jurisdiction to try the whole case and to adjust the liens of the various parties on the property in question. It is sufficient that, at the time the court tried the case, there was then pending before the court a cause of action within its jurisdiction in which the parties were jointly interested. Phelps & Bigelow Windmill Co. v. Parker (Tex. Civ. App.) 30 S. W. 365; Joyce v. Hagelstein (Tex. Civ. App.) 163 S. W. 356 (writ ref.); Brunson v. Dawson State Bank (Tex. Civ. App.) 175 S. W. 438; Reese v. Carey Bros (Tex. Civ. App.) 286 S. W. 307, par. 1; 11 Tex. Jur. 755.

McConnell complains of the action of the court in awarding a personal judgment against him and in foreclosing a mechanic's lien on the cyclorama in favor of certain laborers who performed labor under employment of Mahaffey & Howard in installing the cyclorama in the building. As before stated, McConnell originally agreed with the committee that he would install the cyclorama in the building at his own expense. The committee had leased the cyclorama from McConnell, and had agreed to pay him therefor $1,000 in cash, and one installment of $2,000 on or before August 10th, and $5,000 on or before August 15th, and had agreed to pay him a per cent. of the admission fees. The committee defaulted in its payments of these installments to McConnell. The committee then entered into a new contract with McConnell, by which it agreed to furnish the labor for installing the cyclorama and to credit the cost thereof on the amounts then due by it to McConnell for rentals on the cyclorama. The court found that the committee did furnish the labor through Mahaffey & Howard for installing the cyclorama and its accessories,...