McPherrin v. Lumbermen's Supply Co.

• Decision Date: 12 June 1922
• Docket Number: No. 14229.,14229.
• Citation: 242 S.W. 136,211 Mo. App. 385
• Parties: McPHERRIN v. LUMBERMEN'S SUPPLY CO. et al.
• Court: Missouri Court of Appeals

242 S.W. 136

211 Mo. App. 385

McPHERRIN v. LUMBERMEN'S SUPPLY CO. et al.

No. 14229.

Kansas City Court of Appeals. Missouri.

June 12, 1922.

Appeal from Circuit Court, Jackson County; W. C. Reynolds, Special Judge.

Action by Jessie McPherrin against the Lumbermen's Supply Company and others, for the adjudication of mechanics' liens against the property owned by plaintiff. From a judgment sustaining the lien claimed by E. J. Haag and another, plaintiff appeals. Affirmed.

S. C. McPherrin, H. G. Pope, and Chas., H. Winston, all of Kansas City, for appellant. James McElin and Harding, Murphy, Stinson & Tucker, all of Kansas City, for respondents.

TRIMBLE, P. J.

Plaintiff, as the owner of certain real estate in Kansas City, and having erected thereon an apartment house upon which materialmen had filed lien claims for materials furnished in the construction of the same, brought this suit under what is now section 7240, R. S. 1919, to have all of said claims adjudicated in one action. Her suit was filed January 22, 1918.

In her petition the following lien claimants and others were made parties defendant, to wit: The Lumbermen's Supply Company, the C. A. Brockett Cement Company, and the Funsten Electric Company, who were lien claimants, and Byron G. Bliss, trustee, and Sumner Investment Company, beneficiary, in a deed of trust on the property given to secure a note of $6,500.

It was alleged in the petition that plaintiff had more than fully paid the contractor the contract price for said building; that each of the three lien claimants had given plaintiff what purported to be a notice of lien claim; and that they had filed what purported to be lien claims for materials furnished to said contractor, and in one instance that of the Funsten Electric Company, for materials furnished Shaw, a subcontractor; and that the Lumbermen's Supply Company had filed suit on its claim before a justice of the peace.

It was further alleged that—

"There may be other claimants with pretended liens against her and her said property, but of which she has no legal notice, and if there be any such, they do not appear of record in this county or court." Wherefore, plaintiff prayed "for relief against all parties who have or hold claims against her said property; that they be required to appear in this suit and set up their alleged claims; and that all suits now pending or that may thereafter be filed be transferred to this cause to be determined herein, as in such cases by the laws of this state made and provided, that the title to said property may be tried and determined and the rights of all of said parties to said property truly ascertained," etc.

Summons was duly issued for all of the above-mentioned defendants on the 23d day of January, 1918. On the 25th of January, 1918, the defendant C. A. Brockett Cement Company filed motion to make "Frank B. Rohe, doing business as F. B. Rohe Construction Company," a party defendant, as said Frank B. Rohe was a necessary party. The one thus sought to be made a party defendant was the original contractor in the erection of said building. On January 28, 1918, this motion was by the court sustained, and on February 18, 1918, a summons was issued to Frank B. Rohe, doing business as Rohe Construction Company, commanding him to appear on the second Monday in March next. This summons was executed on the 23d day of February, 1918, by the sheriff "leaving a copy of this writ at the usual place of abode of the within named defendant Frank B. Rohe with a person of his family over the age of 15 years."

On motion of the defendant Funsten Electric Company, J. H. Shaw, the subcontractor, was made a party defendant and summons Was ordered to issue for him as a new defendant, and on said 23d day of February, 1918, "summons was issued to J. H. Shaw and Frank B. Rohe to appear on the second Monday in March next, and this summons was executed on said 23d day of February, 1918, "by delivering a copy of this writ to the within named defendant Frank B. Rohe," and a non est return was made as to the defendant Shaw.

At the March term, 1918, an alias summons was issued for Shaw commanding him to appear at the May term, and this writ was executed "by leaving a copy of this writ at the usual place of abode of the within named defendant, J. E. Shaw, with a person of his family over the age of 15 years."

The original defendants, the three lien claimants, and the trustee and beneficiary on the deed of trust, filed their respective answers and cross-bills. On April 23, 1918, S. C. McPherrin was, on motion of the defendant C. A. Brockett Cement Company, made a party defendant, and on April 25, 1918, the Pittsburgh Plate Glass Company was, on its own motion, made party defendant and filed its answer and cross-petition. On May 7, 1918, "E. J. Haag Building & Supply Company, a partnership composed of E. Haag and Arthur Garvey," were made parties defendant on their own motion, and they filed their answer and cross-petition. On September 22, 1919, the A. O. Thompson Lumber Company filed motion to be made party defendant, and same was done, and it filed its answer and cross-petition on October 29, 1919.

During this time and on up to June 23, 1920, a large number of motions were filed by plaintiff, consisting of demurrers, motions to make more definite and certain, motions to dismiss, to continue and for change of venue, to strike out, to quash summons, etc. And finally the case came on for trial before Hon. W. C. Reynolds, special judge in division 9 of the circuit court, on June 22, 1920.

In the meantime the defendants E. J. Haag and Arthur Garvey, doing business under the name of E. J. Haag Building & Supply Company and also sometimes under the name of E. J. Haag Sash & Door Company, had filed their third amended answer and cross-petition, on which the case went to trial. At the time of the trial, it seems that the lien claim of all of the defendants had been paid off, except the one of said E. J. Haag and Arthur Garvey above mentioned.

In the judgment rendered June 23, 1920, it is recited that the "defendant Frank 3. Rohe, although duly summoned and solemnly called, comes not but makes default."

The cross-petitions of all the other intervening petitioners as lien claimants were dismissed for want of prosecution.

The motion of plaintiff to strike out the words "and Frank B. Rohe, doing business as Rohe Construction Company, written with pen and ink in the caption of plaintiff's petition" (and which plaintiff claimed was done without her knowledge or consent), was overruled. The court also overruled the plaintiff's motions to quash the summons of February 18 and 23, 1918, for Frank B. Rohe, and to quash the sheriff's returns thereon.

The court then found all the issues in favor of the defendants E. J. Haag and Arthur Garvey.

The court expressly found that E. J. Haag and Arthur Garvey were partners, and that they did business under the name of E. J. Haag Building & Supply Company and sometimes also under the name of " E. J. Haag Sash & Door Company, sometimes using one name and sometimes the other, "but generally were considered and known as the E. J. Haag Building & Supply Company, and whether they used one name or the other, that either name meant the copartnership, viz. E. J. Haag and Arthur Garvey."

The court then found all the facts necessary to entitle said defendants to a lien on said property to the amount of $253 for materials furnished and entering into the construction of said building.

The court, with reference to the deed of trust heretofore mentioned, found that such a deed of trust existed, "but whether the same was given and filed for record before the commencement of the construction of said building is not shown by the evidence in the case, and the court makes no finding upon that question."

Wherefore the court rendered judgment in favor of the defendants E. J. Haag and Arthur Garvey, doing business under the name of E. Haag Building & Supply Company, against the defendant Frank B. Rohe, doing business under the name of Rohe Construction Company, in the sum of $253, and made the same a special lien on the property superior to the lien of said deed of trust.

From this judgment and decree the plaintiff has appealed.

Appellant makes numerous complaints with reference to the making of Frank 3. Rohe a party defendant, and contends that he was not made such a party. Of course, if he was not a party defendant, the judgment is void. Rumsey, etc., Co. v. Riefler, 108 Mo. App. 485, 489, 83 S. W. 1027; section 7225, R. S. 1919. But we think he was properly made a party. Whether his name was interlined in the caption of plaintiff's petition as one of the defendants, with or without plaintiff's authority, would seem to us to make no...