Philip Gruner & Bros. Lumber Co. v. Hartshorn-Barber Realty & Building Co.
| Decision Date | 01 March 1913 |
| Citation | 154 S.W. 846,171 Mo.App. 614 |
| Parties | PHILIP GRUNER & BROS. LUMBER COMPANY, Appellant, v. HARTSHORN-BARBER REALTY AND BUILDING COMPANY et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Leighton Shields, Wm. R. Orthwein, P. H. Cullen, Thomas T. Fauntleroy and Shepard Barclay for appellant.
(1) Where a statement for a mechanic's lien is defective, by reason (as in this case) of an error in describing the real property, the lienor may, within the statutory period, file another statement for lien upon the same account with a correct description of the property remedying the original defect. Plaintiff had a right to file its second statement for lien of August 10, 1912, amending the description of the first. Burnett v. Clooney, 67 Mo.App. 664; 68 Mo.App. 146; Hannon v. Gibson, 14 Mo.App. 36; Camden v. Steamboat, 6 Mo. 381; Lumber Co. v Wright, 114 Mo. 326. (2) The doctrine of "relation" is a "fiction of law" to support and maintain just claims, and not to destroy them. 24 Am. & Eng. Ency. L. (2 Ed.), 275; Lilly v. Tobein, 103 Mo. 490; Land Co. v. Franks, 156 Mo. 690; Wheeler v. Milling Co., 73 Mo.App. 677; DeWitt v. Smith, 63 Mo. 266; Ward v. Davidson, 89 Mo 445; Reyburn v. Mitchell, 106 Mo. 379; Cohn v. Souders, 175 Mo. 467; Nave v. Adams, 107 Mo. 421. (3) In a suit to enforce a special tax bill (which is entirely a lien and not a personal suit) it has been held that, when an invalid tax bill was replaced by a second, a suit on the first may proceed by an amended petition on the amended or second tax bill and a valid judgment of lien be entered thereon, without the useless formality of dismissing the first suit and then beginning a new suit on the amended tax bill. That decision on principle involves the identical features of the case at bar. Galbreath v. Newton, 45 Mo.App. 312. (4) The second amended petition was an abandonment of the old petition, and so far as the amended lien statement was concerned was in effect a new suit. Young v. Woolfolk, 33 Mo. 110; Ticknor v. Voorhis, 46 Mo. 110. (5) The last lien statement was different from the first in giving a correct and true description of the property. There is no ground to assert that the claims are the same or two liens filed. The burden is on defendants on that issue and their demurrer admits the facts as alleged in the second amended petition, which show a correction in the description of the property against which the lien is sought. Harmon v. Wirtel, 59 Mo.App. 646; Lumber Co. v. Wright, 114 Mo. 326. (6) An amendment of mere description such as here appears should be allowed as a matter of course as part of the customary procedure under the code. Hannon v. Gibson, 14 Mo.App. 36; Newman v. Ry., 19 Mo.App. 100; Calleghan v. McMahan, 33 Mo. 111; Sage v. Tucker, 51 Mo.App. 336; Reyburn v. Mitchell, 106 Mo. 379; 13 Ency. Pl. and Pr., p. 1009. (7) It has long been the policy of the law of Missouri to construe the machanics' lien law reasonably, as remedial legislation to accomplish just results, as intended by its spirit and evident purpose. Crane Co. v. Real Estate Co., 121 Mo.App. 225; DeWitt v. Smith, 63 Mo. 266; Putnam v. Ross, 46 Mo. 337; Hicks v. Schofield, 121 Mo. 381; McAdow v. Sturtevant, 41 Mo.App. 220; Rall Bros. v. McCrary, 45 Mo.App. 370. (8) The decisions of our courts are in favor of a liberal exercise of the power of amendment to save limitations. A petition as a matter of law may date back in order to do justice and save a party, but the courts will not date back a petition for the sake of doing an injustice or to put a party out of court. The dating back of a petition is a fiction of the law. A petition dates as of when it is filed when necessary to support its claim. Childs v. Railroad, 117 Mo. 414; Hannon v. Gibson, 14 Mo.App. 33; Cohn v. Saunders, 175 Mo. 455; Lumber Co. v. Clark, 82 Mo.App. 225.
Boyle & Priest and Paul U. Farley for respondent.
The demurrer to plaintiff's second amended petition was properly sustained. First: Because the record shows that the action was commenced prior to the filing of the mechanics' lien account which the amended petition seeks to enforce. Second: Because, while the amended petition alleges that the statutory notice of ten days as to the filing of the first lien of May 15, 1910, was given, this essential allegation as to the lien of August 10, 1910, which is sought to be enforced does not appear. Heltzell v. Hynes, 35 Mo. 484; Hewitt v. Truitt, 23 Mo.App. 443.
--This is an action to enforce a mechanics' 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, ten 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 Assn. 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 eastwardly 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 Assn.'s subdivisions 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 ...
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