Philip Gruner & Bros. L. Co. v. Hartshorn-Barber R. & B. Co.

Decision Date01 March 1913
Citation171 Mo. App. 614,154 S.W. 846
PartiesPHILIP GRUNER & BROS. LUMBER CO. v. HARTSHORN-BARBER REALTY & BUILDING CO. et al.
CourtMissouri Court of Appeals

Rev. St. 1909, § 8217, requires claimants of a mechanic's or materialman's lien to file, within a specified time after the indebtedness accrues, a true account of the demand, in order to obtain a lien. Section 8231 requires every person, except the original contractor, to give 10 days' notice to the owner before filing the lien. Section 8228 requires all actions under the article to be commenced within 90 days after filing the lien, and provides that no lien shall continue for more than 90 days thereafter, unless an action be instituted thereon within that time; and section 8220 provides that the pleadings and proceedings under the article shall be the same as in ordinary civil actions, except as otherwise provided. Held, that a materialman could, after filing a lien statement and instituting suit thereon file within the statutory period an amended statement and amend his petition to conform thereto, as against an objection that the filing of the second statement was an abandonment of the "lien" raised by filing the first statement, so that suit was filed to enforce the lien before the lien statement was filed; the amended petition relating back to the original.

2. MECHANICS' LIENS (§ 159)—LIEN STATEMENT—"LIEN."

The lien statement is not the lien itself; the "lien" being the charge upon the property

arising by operation of law upon filing the lien statement within the proper time.

For other definitions, see Words and Phrases, vol. 5, pp. 4144-4153; vol. 8, p. 7707.]

3. MECHANICS' LIENS (§ 3)—CONSTRUCTION OF STATUTES.

The mechanic's lien law should be liberally construed.

4. PLEADING (§ 252)AMENDMENTS—RELATION.

An amended petition relates back to the beginning of the suit by filing of the original petition.

5. PLEADING (§ 230)AMENDMENTS — CONSTRUCTION OF STATUTE.

The provisions of the Code providing for amendments to pleadings should be liberally construed.

6. MECHANICS' LIENS (§ 276)—PROCEEDINGS —AMENDMENT OF PETITION.

Great liberality is allowed in amending petitions in mechanic's lien proceedings.

7. PLEADING (§ 254)DEMURRER — OBJECTIONS REACHED.

An objection that the amended petition was a departure from the original petition cannot be reached by demurrer.

8. MECHANICS' LIENS (§ 275)—PROCEEDINGS — PLEADINGS—DEMURRER.

An objection that the notice of lien incorrectly described the property could not be reached by demurrer; there being nothing on the face of the petition to show that fact.

9. MECHANICS' LIENS (§ 158)—PROCEEDINGS — NOTICE OF LIEN.

Though the lien statement was amended in mechanic's lien proceedings, and the petition afterwards amended to conform thereto, there was but one lien, so that only one notice of lien was necessary.

10. MECHANICS' LIENS (§ 136)—NOTICE OF LIEN—DESCRIPTION OF PROPERTY—SUFFICIENCY.

A notice of lien, describing the property as lot 21 and the northern 18 feet of lot 22, subdivision named, in the block named, in the city of St. Louis, fronting 38 feet on the east line of B. street, and of the depth stated, sufficiently identified the premises, and was sufficient.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by the Philip Gruner & Bros. Lumber Company against the Hartshorn-Barber Realty & Building Company and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions to overrule demurrer to petition, and for further proceedings.

Leighton Shields, Wm. R. Orthwein, P. H. Cullen, Thos. T. Fauntleroy, and Shepard Barclay, all of St. Louis, for appellant. Boyle & Priest and Paul U. Farley, all of St. Louis, for respondents.

ALLEN, J.

This is an action to enforce a mechanic's lien. The parties to the record are all corporations. The Warner-Jenkinson Company is alleged to be the owner of the property against which the lien is sought; and the Union Trust Company of St. Louis and the Title Guaranty Trust Company are made defendants because of a certain deed of trust alleged to have been executed by the defendant Warner-Jenkinson Company to the Union Trust Company of St. Louis, as trustee, securing notes payable to the Title Guaranty Trust Company, and of which the latter company is alleged, upon information and belief, to have been the holder at the time of the institution of the suit. The defendant Hartshorn-Barber Realty & Building Company is alleged to have been the general contractor for the construction of a brick manufacturing building upon the premises in question; and it is alleged that the plaintiff, a lumber company, furnished materials to said building under contract with the defendant Hartshorn-Barber Realty & Building Company, and for which a lien is sought upon the building and the lots of ground upon which the same is situated. It is alleged that the construction of the building was begun before the execution of the deed of trust in question, and that therefore plaintiff's right to a lien had priority over the deed of trust.

On May 15, 1910, plaintiff filed a statement of its account and a description of the property against which the lien was sought in the office of the clerk of the circuit court of the city of St. Louis, having 10 days prior thereto, to wit, on May 5, 1910, given notice in writing to the defendant Warner-Jenkinson Company, the owner of the premises, of its claim against the property, the amount thereof, from whom due, and of its intention to file a lien therefor.

Thereafter, to wit, on May 28, 1910, plaintiff filed its original petition herein in the circuit court of the city of St. Louis for the enforcement of said lien, and on June 3, 1910, a writ of summons was duly issued for all of the defendants, returnable to the October term, 1910, of said court. In the said lien statement filed on said May 15, 1910, the said real estate was described as follows: "Lot twenty-one (21) and the northern eighteen (18) feet of lot No. twenty-two (22) of Randall & State Savings Ass'n's subdivision in block eighteen ninety-nine (1899), in the city of St. Louis, fronting thirty-eight (38) feet on the east line of Baldwin street, by a depth northwardly of one hundred and twenty-eight (128) feet six (6) inches to an alley."

In the original petition filed herein said real estate was likewise described as above. Thereafter, on the 10th day of August, 1910, and within four months after the indebtedness accrued upon which plaintiff's claim to a lien is based, plaintiff filed an amended lien statement with the clerk of the circuit court of said city of St. Louis, in which no change was made in the statement of plaintiff's account, but in which the description of the property was slightly changed; said amended description thereof being as follows:

"Lot twenty-one (21) and lot No. twenty-two (22) of Randall & State Savings Ass'n subdivision in block eighteen ninety-nine (1899) of the city of St. Louis, which said lots are contiguous and front forty (40) feet on the east line of Baldwin street by a depth extending eastwardly of one hundred and twenty-eight (128) feet six (6) inches to an alley."

Thereafter, on September 29, 1910, plaintiff filed its first amended petition, and on December 13, 1910, filed its second amended petition, in which said property is described as in the amended lien statement filed August 10, 1910.

It appears upon the face of plaintiff's second amended petition that "on May 15, 1910, it filed a statement of its account and a description to said property, which is recorded in the office of the clerk of the circuit court of the city of St. Louis, in vol. 7 of mechanic's lien book number 11,623, and on the 10th day of August, 1910, and within four (4) months after the aforesaid indebtedness on the aforesaid account accrued, it did amend its said statement of account and description, and did, in accordance with the statute in that behalf made and provided, duly file with the clerk of the circuit court of the city of St. Louis a just and true account of the demand due it, as aforesaid, after all just credits had been given, and that it so filed the same as a mechanic's lien upon said above-described real estate and building, and that it then and there filed therewith, as a part thereof, a true description of said real estate and building; * * * that in pursuance of the statute in that behalf made and provided, and more than ten days prior to the filing of said lien, to wit, on May 5, 1910, the plaintiff herein gave notice, in writing, to said defendant Warner-Jenkinson Company of its claim against said building improvements, the amount thereof, from whom due, and of its intention to file a lien therefor, which said notice was, on said last-named date, duly served upon the said defendant Warner-Jenkinson Company in accordance with the statute in that behalf made and provided."

To this second amended petition the defendants Warner-Jenkinson Company, Union Trust Company of St. Louis, and the Title Guaranty Trust Company filed separate demurrers, which demurrers were by the court sustained. The plaintiff refused to plead further as to these defendants, and stood upon its second amended petition. The defendant Hartshorn-Barber Realty & Building Company made default, and judgment was entered in favor of plaintiff against this defendant for the amount of plaintiff's claim, without a lien upon the property. Judgment was entered upon the demurrers in favor of the other defendants, and plaintiff appeals.

Although the case is here upon an appeal from the action of the trial court in sustaining demurrers to plaintiff's petition, and the final judgment entered upon said demurrers, it is unnecessary to set out more of the petition than we have above, for the reason that the demurrers were...

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