Mechanics' Planing-Mill Co. v. Nast

• Decision Date: 29 April 1879
• Citation: 7 Mo.App. 147
• Parties: MECHANICS' PLANING-MILL COMPANY, Defendant in Error, v. WILLIAM F. NAST ET AL., Plaintiffs in Error.
• Court: Missouri Court of Appeals

7 Mo.App. 147

MECHANICS' PLANING-MILL COMPANY, Defendant in Error,

v.WILLIAM F. NAST ET AL., Plaintiffs in Error.

St. Louis Court of Appeals, Missouri.

Apr. 29, 1879.

1. Where the description of the property and owners in the first lien-claim is such that the court may declare, as a matter of law, that it is insufficient a second claim, if sufficient and filed in time, may be sustained.

2. The lien-claimant must file such a description as will not only identify the property with reasonable certainty as between the parties, but such as will be notice to strangers purchasing the property.

ERROR to St. Louis Circuit Court.

Judgment corrected.

JOHN D. DAVIS, for plaintiffs in error: “In an action on a mechanic's lien, the statutory averments are material; they are the essential facts that show the claim to be protected by the lien.”-- Peck v. Bridwell, 6 Mo. App. 451; Porter v. Tooke, 35 Mo. 107; Wilcox v. Keith, 3 Or. 372. An omission of such averments is not cured by verdict.-- Langsdorf v. Sanger, 40 Mo. 164; Shaw v. Allen, 24 Wis. 563. If enough appears in the description to enable one familiar with the locality to identify the premises intended to be described, with reasonable certainty, to the exclusion of others, it will be sufficient.-- De Witt v. Smith, 63 Mo. 263; Oster v. Rabeneau, 46 Mo. 595; O'Halloran v. Leachey, 39 Ind. 150; O'Halloran v. Sullivan, 1 Greene (Iowa), 75; McClintock v. Rush, 63 Pa. St. 203; Parker v. Bell, 7 Gray, 429; Caldwell v. Asbury, 29 Ind. 451. “Plaintiff could have but one lien for the same demand. If he failed to sue in proper time after filing it, he has lost his lien and special remedy thereon.”-- Mulloy v. Lawrence, 31 Mo. 583. The entry of a personal judgment against defendant William F. Nast, who had simply been served by publication and had not entered his appearance, was erroneous.RUDOLPH SCHULENBURG, for defendant in error: Where the statement of lien is defective and void, the plaintiff is at liberty to file a second lien-claim.-- Chambers v. Garnall, 15 Pa. St. 265; Bournonville v. Goodall, 10 Pa. St. 133; Highfield v. Pierce, 3 Pa. St. 50; Skyrme v. Occidental M. Co., 8 Nev. 219. “No notice having been given, the lien was a nullity, and a second lien can be filed.”-- Matlack v. Lare, 32 Mo. 262; Williams v. Porter, 51 Mo. 441. “There being no proper description, no lien is created.”-- De Witt v. Smith, 63 Mo. 265.

HAYDEN, J., delivered the opinion of the court.

In this suit to enforce a mechanic's lien, the defence was that before the filing of the lien-claim now relied on, a first lien-claim was filed, and that the present suit is not brought within ninety days from the filing of the first lien-claim. To this the plaintiff replies that the first lien-claim was defective, as it did not correctly describe the property or its owners. As the second claim was filed in time, and this suit was brought within ninety days after such filing, the question presented is whether the first lien-claim is so far defective as to entitle the plaintiff to rely upon the second. Here the inchoate lien existed by reason of the furnishing, etc., of the materials, and if the first lien-claim was not sufficient in law, the plaintiff was at liberty to file a second within the time prescribed. Davis v. Schuler, 35 Mo. 24. Not to mention other discrepancies, the description of the property in the first lien-claim was “nine certain two-story brick houses,” that of the second and correct claim, “eight certain two-story brick houses and one three-story brick house.” In the first claim there were the words, “said lot...