Peerless Supply Co. v. Industrial Plumbing & Heating Co.

• Decision Date: 21 October 1970
• Docket Number: No. 54169,No. 1,54169,1
• Citation: 460 S.W.2d 651
• Parties: PEERLESS SUPPLY COMPANY, Plaintiff, v. INDUSTRIAL PLUMBING & HEATING COMPANY, Inc., et al., Defendants. William G. HAVIN, d/b/a Havin Material Service, Defendant and Cross-Claimant, Respondent, v. ST. JOSEPH LEAD COMPANY, Defendant, Appellant
• Court: Missouri Supreme Court

Page 651

460 S.W.2d 651

PEERLESS SUPPLY COMPANY, Plaintiff, v. INDUSTRIAL PLUMBING & HEATING COMPANY, Inc., et al., Defendants.

William G. HAVIN, d/b/a Havin Material Service, Defendant and Cross-Claimant, Respondent, v. ST. JOSEPH LEAD COMPANY, Defendant, Appellant.

No. 54169.

Supreme Court of Missouri, Division No. 1.

Oct. 21, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 14, 1970.

Randolph E. Puchta, Hermann, for respondent William G. Havin d/b/a Havin Material Service.

W. Oliver Rasch, Bonne Terre, John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant St. Joseph Lead Co.

BRUCE NORMILE, Special Judge.

This is an equitable mechanic's lien action brought under the provisions of Secs. 429.270 through 429.340, V.A.M.S. (also see Civil Rules 101.11 through 101.19 V.A.M.R.). Of the original twenty-five parties to the suit only appellant St. Joseph Lead Company and respondent William G. Havin, d/b/a Havin Material Service are parties to this appeal.

Under a series of contracts, beginning in July 1963, Plez Lewis and Son, Inc., became the general contractor for the St. Joseph Lead Company for construction of surface structures and the mine collar for the Fletcher Mine project in Reynolds County, Missouri. The basic contract price exceeded $2,600,000.00. Under a purchase order issued by Plez Lewis dated August 7, 1963, respondent Havin furnished readymix concrete, gravel and similar materials to the general contractor, used by it in the construction of the surface buildings and collar.

On May 26, 1965, Havin filed a statement of his account in the circuit court showing charges of $246,168.90, credits of $193,583.75 and a balance due of $52,585.15. Thereafter on May 27, 1965, Havin filed a suit to enforce his mechanic's lien against Plez Lewis and Son, Inc., and St. Joseph Lead Company in the Circuit Court of Reynolds County, Missouri. The record on this appeal is silent on what service, if any, was obtained upon the defendants in that suit.

Thereafter on October 13, 1965, plaintiff Peerless Supply Company brought this equitable mechanic's lien action joining the general contractor on the Fletcher Mine project, Plez Lewis and Son, Inc., the owner of the mine, St. Joseph Lead Company, and twenty-two other lien claimants, including respondent William G. Havin. By its petition Peerless alleged that it had supplied materials for the project to the first named defendant Industrial Plumbing and Heating Company, Inc. The petition stated the various mechanic's liens against the real estate totaling in excess of $470,000.00 and including the lien of respondent Havin in the amount of $52,585.15.

In the prayer for relief, plaintiff prayed judgment against Industrial Plumbing and Heating Company for its own account, with a mechanic's lien against the property and further prayed '* * * that the various rights and interests of the various Mechanic's Lien claimants and claimants of other liens on said real estate and buildings * * * and of the owner of said property be determined and enforced; * * * that all separate suits now brought or pending by any of the parties hereto be ordered stayed * * * and none of such suits be further prosecuted, and that all of the rights of the parties under such suits be adjudicated and determined in this one equitable proceeding; * * * and for any and all other proper and equitable relief to which the plaintiff and all other parties herein may be entitled.'

The proceedings in this case were necessarily complex. The record shows twenty-three trial court docket sheets with over one hundred ten entries. Answers were filed on behalf of many of the defendant lien claimants and answers and cross-bills were filed on behalf of other lien claimants. Various motions were filed on behalf of different parties. Certain summary judgments were granted. Argument was held on various other motions. Memoranda and briefs were filed by various parties. Ultimately, however, all claims excepting that of respondent Havin were dismissed with prejudice upon either stipulation or motion.

Trial was had on Havin's cross-petition on September 18, 1967. The statutory trustees of Plez Lewis and Son, Inc. (which had become a dissolved corporation) were in default. St. Joseph Lead Company appeared on that date and contested the issues. The case was taken under advisement. A default judgment was then entered against the trustees of Plez Lewis and Son, Inc., on July 17, 1968, (ten months after trial) in the amount of $50,707.58 with interest from and after March 5, 1965. The judgment also decreed a lien against the real property of the appellant, St. Joseph Lead Company.

St. Joseph Lead Company now appeals. It urges that Havin is barred by the six months statute of limitations for his failure and neglect to procure the issuance and service of an alias summons for Plez Lewis and Son, Inc., or its statutory trustees, after the filing on October 26, 1965, of a non set return on the original summons issued for Plez Lewis, and for the continuing failure to obtain service upon the statutory trustees until April 14, 1967. St. Joseph also urges that Havin is estopped to assert a lien against the property to the extent of $40,874.44, because St. Joseph Lead Company made payments to Plez Lewis in reliance upon certain letters from Havin to Plez Lewis indicating that the Havin account with Plez Lewis was 'relatively current' at a time when it was in arrears in the amount of $40,874.44.

The proceedings, as they relate to respondent Havin, St. Joseph Lead Company, and Plez Lewis and Son, Inc., must be further detailed so as to allow an understanding of the issues involved on this appeal.

Upon the filing of the equity suit by Peerless, both Havin and St. Joseph Lead Company were duly served. However, the summons to Plez Lewis, issued on October 18, 1965, was returned with a non est endorsement on October 26, 1965.

On November 20, 1965, Havin filed his answer to the plaintiff's petition and his cross-bill against defendants Plez Lewis and Son, Inc., and St. Joseph Lead Company. In addition to other matters pleaded, Havin suggested that his lien was prior in time to all others and also suggested the filing of his separate suit on May 27, 1965. Havin prayed for judgment against defendant Plez Lewis and Son, Inc., for the debt due and asked that a lien might be adjudged against the property of St. Joseph Lead Company. The record on this appeal is silent as to any service of process on Havin's cross-claim on either Plez Lewis or St. Joseph. He assume there was none as to Plez Lewis. However, St. Joseph did respond by filing various motions directed against Havin's pleadings.

On December 9, 1965, St. Joseph filed a motion to quash service of and to dismiss Havin's cross-bill. On December 13, 1965, St. Joseph filed an answer to the petition of the plaintiff, Peerless Supply Company.

On January 15, 1966, the corporate charter of Plez Lewis and Son, Inc., was forfeited under the provisions of Sec. 351.525 V.A.M.S., by the Secretary of State effective January 1, 1966, for failing to make its annual registration, filing its annual statements, anti-trust affidavits, etc., as required by statute.

On January 19, 1966, on application of Peerless Supply Company, an alias summons was issued for Plez Lewis and Son, Inc. On February 3, 1966, return was made upon the alias summons by the sheriff of St. Louis County, showing the service '* * * by delivering on the 28th day of January, 1966, a copy of the Summons and a copy of the Petition as furnished by the Clerk to Arthur Lewis, President; Registered Agent, of the within named Corporation, Plez Lewis & Son, Inc., a corporation.'

On February 18, 1966, St. Joseph's motion to quash the service of Havin's cross-bill was taken up and submitted. The parties were allowed 45 days thereafter to file briefs. As will be seen, this motion was not ruled upon until almost seven months later. At the same time certain motions of Havin, including one to relieve him from serving itemized statement of the account, were taken up and overruled. (It might be noted that Havin's statements of account were composed of 63 legal size pages with single spaced itemization of deliveries.)

On July 30, 1966, upon leave of court, St. Joseph filed suggestions as to the forfeiture of the corporate charter of Plez Lewis and Son, on January 1, 1966, prior to service of the summons of January 19, 1966, and filed its motion to quash the alias summons and the alleged service and return thereof, on the grounds that the summons was illegal and void and conferred no jurisdiction upon the person of Plez Lewis and Son, Inc.

On August 11, 1966, defendant Industrial Plumbing and Heating Company, Inc., and Cass Bank and Trust Company filed their motion to substitute the directors and officers of Plez Lewis and Son, Inc., as of January 1, 1966, as statutory trustees for the dissolved corporation under Sec. 351.525, V.M.S.A. The complexities of this litigation are illuminated by the fact that, on August 24, 1966, only 13 days after filing of the above motion of Industrial, the suggestion was made to the court as to the forfeiture of the charter of Industrial Plumbing and Heating Company, Inc., also as of January 1, 1966.

On September 6, 1966, the motion of St. Joseph Lead Company to quash the service of and dismiss the cross-bill of Havin was overruled. St. Joseph was granted 20 days after the date the court ruled upon the pending motion to substitute parties defendant in lieu of Plez Lewis and Son, Inc., to file its answer to Havin's cross-bill. On that same date all pending motions were passed and reset for hearing on Friday, September 30, 1966.

On September 30, 1966, St. Joseph's motion to quash the alias summons for Plez Lewis and the service and return thereof was sustained. On that date the motion of Industrial Plumbing and Heating and Cass Bank and Trust Company to...