Meyer v. Broadwell

• Decision Date: 31 October 1884
• Citation: 83 Mo. 571
• Parties: MEYER v. BROADWELL, Appellant.
• Court: Missouri Supreme Court

83 Mo. 571

MEYER

v.BROADWELL, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

Frank Titus for appellant.

(1) Defendants' plea to the jurisdiction should not have been stricken out, and plaintiff's demurrer thereto was improperly sustained. Plaintiff alleged in his petition, as a material allegation, that defendants were nonresidents of the state. Defendants' first answer denied the truth of each allegation in the petition, and the omission of defendants to set forth such denial in so many words was not an admission of the propriety or regularity of the process, or a waiver on their part of any objection thereto which estopped them from setting up the same more fully in their answer of October 2d, 1878. If the defendants were residents of the state then, as that was the only fact on which plaintiff based his right to non-personal process, it was an issuable fact to determine the jurisdiction of the court over the persons of defendants. (2) Defendants' instruction No. 1 should have been given. Plaintiff's evidence not only proves a different contract from that pleaded by him, but shows a state of facts upon which he would be precluded from a recovery on assumpsit even under proper pleadings. Groves v. Railroad, 57 Mo. 306; Budd v. Zoller, 52 Mo. 242; Stollings v. Sappington, 8 Mo. 118; Chambers v. King, 8 Mo. 517; Yeats v. Ballentine, 56 Mo. 530; Williams v. Porter, 51 Mo. 441; Kling v. Ry. Construction Co., 7 Mo. App.; Carroll v. Craine, 9 Ill. (4 Gil.) 563; Linn v. O'Hara, 2 E. D. Smith 569; Eyerman v. Mount Sinai Association, 61 Mo. 489; Earp v. Tyler, 73 Mo. 617. The tenth instruction should have been given. The evidence shows clearly the defendants were citizens of this state, residing at Fulton. The validity of the process and consequent personal jurisdiction over them rested upon proof of the fact of non-residence. This matter was not waived by defendants. The judgment complained of is a personal one against appellant. That in an action when process is had by publication, in mechanic's lien cases it is error to render a personal judgment against defendant if lien fails; See Hartman v. Sharp, 51 Mo. 30; Grant v. Vandercook, 57 Barb. 165; Glacius v. Black, 67 N. Y. 563; Glacius v. Black, 50 N. Y. 145; 19 Albany Law Journal, 115.

R. W. Quarles for respondent.

BLACK, J.

1. This was an action to enforce a mechanic's lien for work done and materials furnished in the construction of a stone foundation wall upon the property of the wife of defendant. The appellant and his wife were made parties to this suit and were notified by publication only. They appeared and filed an answer; subsequently they procured a continuance of the cause, and at a later term filed an amended answer in which, for the first time, as a second defence, they alleged that they were residents of the state at the commencement of the suit, and, not having been served with personal process, the court had acquired no jurisdiction over them. The appearance to the suit and the pleadings thus made waived the irregularity of the process, if any there was, and they subjected themselves to the jurisdiction of the court, and this portion of the amended answer was properly stricken out.

2. The petition counts for the value of the work and materials. The answer was a general denial, except as to some items of alleged credit given by the plaintiff; and a counter-claim for materials belonging to defendant, alleged to have been converted by the plaintiff to his own use. The evidence showed...