Mid-West Engineering & Const. Co. v. Campagna
| Decision Date | 13 November 1967 |
| Docket Number | No. 1,No. 52572,MID-WEST,52572,1 |
| Citation | 421 S.W.2d 229 |
| Court | Missouri Supreme Court |
| Parties | ENGINEERING & CONSTRUCTION CO., a Corporation, Plaintiff-Appellant-Respondent, v. Joseph A. CAMPAGNA, Randolph Development Corporation, a Corporation, and Campagna Corporation, a Corporation, Andrew Sansone and Roads Realty, Inc., a Corporation, Defendants- Appellants- Respondents |
Shifrin, Treiman, Schermer & Susman, Sylvan Agatstein, St. Louis, for plaintiff-appellant-respondent.
Ackerman, Schiller & Schwartz, Clayton, for defendants-appellants-respondents, Andrew Sansone and Roads Realty, Inc., Gideon H. Schiller, Clayton, of counsel.
This case is the sequel to Mid-West Engineering & Construction Co. v. Campagna et al., (Mo.Sup.) 397 S.W.2d 616, and involves the question of whether interest accruing on the principal sum due the plaintiff-contractor for work done and materials furnished is lienable against the interests of the owner and lessee of the premises, not parties to the construction contract. In its petition plaintiff prayed judgment against the obligors in the construction contract for the entire balance of principal on the account, $73,236.37, with 6% interest from September 17, 1958, and costs, and further that said amount, interest, and costs be adjudged a mechanic's lien against the land in question, owned by defendant Andrew Sansone and leased by defendant Roads Realty, Inc. On July 18, 1964, the trial court entered judgment for plaintiff against the obligors in the sum of $73,236.37, with interest at 6% from September 17, 1958, to date, to-wit, $25,632.33, or a total of principal and interest of $98,869.10, but the court did not decree the same to be a mechanic's lien against the land.
On appeal, in 397 S.W.2d 616, the court held plaintiff was entitled to a lien for work done and materials furnished through July 29, 1958, but not thereafter because of certain lien waivers, and reversed the judgment of the trial court insofar as it disallowed the lien claim of plaintiff. The cause was remanded to the trial court for further proceedings with respect to such lien claim consistent with the opinion and the remainder of the judgment of the trial court was affirmed, 397 S.W.2d 616, 630, 634.
Back in the trial court a general execution was issued on the judgment recovered against the defendant obligors. It was returned unsatisfied July 5, 1966. Plaintiff and defendants Sansone and Roads Realty, Inc., owner and lessee, respectively, entered into a stipulation providing that by consent the court should adjudge and decree that plaintiff was entitled to a mechanic's lien against the freehold interest and leasehold of said defendants in the principal sum of $51,100 for work done and materials furnished by plaintiff, which sum was to be paid contemporaneously with the filing of the stipulation and nulla bona returns on the general judgment debtors.
The parties further stipulated the trial court should determine as the sole issue whether plaintiff was entitled to interest upon the principal sum of $51,100 accruing from September 18, 1958, to be included with said principal sum as a mechanic's lien claim and if entitled to include said interest, the amount and the basis upon which computed. The parties also stipulated that no admissions were made and that both sides reserved the right to appeal.
The court found that plaintiff was entitled to interest on the $51,100 from September 18, 1958, until July 5, 1966, the date on which the principal sum of $51,100 was paid to plaintiff, said interest amounting to $23,906.29, which amount the court decreed as a mechanic's lien against the property ahead of defendant Sansone's fee and defendant Road Realty, Inc.'s lease.
Both sides have appealed. Defendants Sansone and Roads Realty, Inc., contend no interest whatever should be allowed against the landowner and lessee, they not having been parties to the construction contract. Plaintiff contends interest is allowable and that it should have been computed on the $51,100 to the date of the original judgment and thereafter computed 'upon that judgment including interest and principal until July 5, 1966'.
We are of the opinion the trial court was correct in holding the interest lienable. Rule 101.06 1 provides 'The court shall ascertain by a fair trial in the usual way, the amount of the indebtedness for which the lien is prosecuted, and may render judgment therefor in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs * * *' (emphasis ours). This rule is identical with Section 429.210, which has been part of the mechanic's lien law since 1866, G.S. Mo. 1866, Ch. 195, Sec. 11. Defendants contend the landowner's liability is predicated solely on rules 101.08 and 101.09; that rule 101.08, entitled 'Judgment on Constructive Notice', and rule 101.09, entitled 'Judgment on Personal Service', prevent interest liability from being imposed on owners who are not parties to the contract; that the 'indebtedness' referred to in rule 101.08 does not mention or include interest and since interest, they therefore contend, is not allowed under said rule, the same is true of rule 101.09 because under the latter rule two levies are to be made, the first against the debtor and if that is not sufficient, then a second levy for the residue as provided in rule 101.08, which does not include interest.
For authority defendants cite Hill v. Chowning, 93 Mo.App. 620, 67 S.W. 750, saying it holds that 'Rule 101.06 covers only cases where the debtor and owner are one and the same person and that Rule 101.09 only has reference to cases where the debtor and owner are different persons' and that 'When it comes to levying on a judgment against the non-contractor owner, one must look solely to Rule 101.08.'
The question in the Hill case was, where the contractors had prosecuted to judgment a suit to establish a mechanic's lien (on which a special execution was returned wholly unsatisfied), but had obtained no personal judgment against the parties to the contract, could the contractors bring a subsequent action against some of the same defendants for the amount of their subscription to the building contract? The court held no, that in the first action instead of taking a personal judgment and a judgment to enforce the lien, they took only a judgment to enforce their lien and so waived their right to prosecute another suit for the same demand. The court said that Section 4216, R.S.1899 (now rule 101.09) has reference to cases where the debtor and the owner are not one and the same person and is mandatory. This, however, referred to the object of said statute to require payment first from the principal debtor if sufficient property could be found with the real estate charged to be resorted to only on a failure thus to secure satisfaction, as can be seen from the citation in the opinion of Farley Bros. v. Cammann, 43 Mo.App. 168.
We fail to see how Hill v. Chowning supports defendants' contentions. The case makes no mention of what is now rule 101.06 and cannot be said to hold that the judgment referred to in said rule, including interest, applies only where the debtor and the owner are the same. All the case says about the situation where the debtor and the owner of the property are the same person is that such case is governed by the usual provisions of the code of civil procedures, as specifically provided by what is now rule 101.03.
It is clear that rule 101.06, by express terms, allows interest to be included in a judgment in a mechanic's lien suit and if plaintiff succeeds in establishing his right to a lien, the judgment rendered, including interest, is a lien upon the land and the improvements and we overrule defendants' contention to the contrary. It does not seem reasonable that the mechanic or materialman can rely on the debtor-contractor for principal and interest (as defendants concede he can do), but where the debtor and owner are different persons, can rely on the owner only for principal, and we do not think the fact that interest is not mentioned in rules 101.08 and 101.09 calls for such a result. These two rules relate to procedure, to the provisions to be included in the judgment as to levy on the property described in the petition.
Defendants contend it is unfair to include interest in the lien allowed against a...
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