McKelvey v. Wonderly

• Decision Date: 02 June 1887
• Citation: 26 Mo.App. 631
• Parties: SAMUEL P. MCKELVEY ET AL., Respondents, v. CHARLES P. WONDERLY, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 631

SAMUEL P. MCKELVEY ET AL., Respondents, v. CHARLES P. WONDERLY, Appellant.

Court of Appeals of Missouri, St. Louis.

June 2, 1887

APPEAL from the St. Louis Circuit Court, LEROY B. VALLIANT, Judge.

Reversed.

JOHN R CHRISTIAN, for the appellant: The notice to Truitt by publication was fatally defective. The judgment against him is, therefore, void. Rev. Stat., sect. 2876. The judgment being void as to Truitt, it is void as to Wonderly. Pomeroy v. Betts, 31 Mo. 419; Holt Co. v Harmon, 59 Mo. 165; Covenant Mutual Insurance Co. v Clover, 36 Mo. 392; Smith v. Rollins, 25 Mo. 408; Rush v. Rush, 19 Mo. 441; Lenox v. Clark, 52 Mo. 115; Freeman on Judgments, sect. 136.

STONE & JOHNSON, for the respondents: By appealing said cause, and trying it de novo in the circuit court, the appellant waived any " error, defect, or imperfection in the original summons or the service thereof (if any such there be), and dispensed with the necessity of a regular summons before a justice." Rev. Stat., sect. 3052; Boulware v. Railroad, 79 Mo. 494; Gantt v. Railroad, 79 Mo. 502; Reddick v. Newburn, 76 Mo. 423.

OPINION

THOMPSON J.

This action was brought before a justice of the peace to enforce a mechanic's lien. The parties defendant are J. E. Pruitt against whom the suit is brought as contractor for the work, and against whom the lien was filed as the owner of the land at the time the work was done; and C. P. Wonderly, a subsequent purchaser. Service of summons was had upon Wonderly, but not upon Truitt. As to Truitt, the justice made an order of publication under section 2876, Revised Statutes, upon which the constable made a return that he had posted four copies of the same in four public places in the city of St. Louis, etc. This order of publication recited that the object and general nature of the suit was to recover a personal judgment against the defendant, Joseph E. Truitt, for the sum of thirty-five dollars, and interest thereon, and to enforce a mechanic's lien against the property, describing it; but it failed to state " on what account" the amount sued for was claimed to be due. The statute (Rev. Stat., sect. 2876) requires that the notice shall state " that a??uit has been instituted against him to enforce a mechanic's lien against the property, describing it, stating the amount claimed to be due, and on what account, " etc. The words, " on what account," mean something. The use of those words, at least, implies that the legislature intended that the notice should state that the claim was on account of work and labor done upon the building, or materials furnished in the building or repairing of the same, as the case might be. In the notice in this case there is no attempt whatever to...