Pittsburgh Plate Glass Co. v. Peper

• Decision Date: 25 November 1902
• Citation: 70 S.W. 910,96 Mo. App. 595
• Parties: PITTSBURGH PLATE GLASS CO. v. PEPER et al.
• Court: Missouri Court of Appeals

70 S.W. 910

96 Mo. App. 595

PITTSBURGH PLATE GLASS CO. v. PEPER et al.

Court of Appeals at St. Louis, Missouri.

November 25, 1902.

WRIT OF ERROR — DISMISSAL — APPEAL — MECHANIC'S LIEN — PROCEDURE.

1. Some defendants answered the petition by general denials, and another demurred. The demurrer was sustained, and final judgment was entered for one defendant, leaving undisposed of the issues raised by the answers of the other defendants. Held, that a writ of error to review the ruling on the demurrer was premature, and should be dismissed.

2. Only one final judgment should be rendered in a cause, and a writ of error is not proper where there is no final judgment. The court intimates that in the exceptional classes of cases mentioned in section 806, Rev. St. 1899, appeal will lie, but not a writ of error.

3. Actions to enforce mechanics' liens are governed by the general code of practice, except in those particulars wherein the lien law makes different special provisions.

(Syllabus by the Judge.)

Error to St. Louis circuit court; Franklin Ferris, Judge.

Action by the Pittsburgh Plate Glass Company against Christian Peper and others. Judgment for defendants, and plaintiff brings error. Dismissed.

John M. Dickson, for plaintiff in error. Galt & Collins, for defendants in error.

BARCLAY, J.

This is an action to enforce a mechanic's lien. The plaintiff is the Pittsburgh Plate Glass Company, a corporation. The defendants are Christian Peper, Josh Lowis, Josh Lowis Painting Company, and Henry F. Beinke. The first-named defendant is alleged to be the owner of the land to which the lien is sought to be affixed. The other defendants are charged to be the principal and subcontractors for the erection of a building on Mr. Peper's land whereto plaintiff's materials were furnished in circumstances which plaintiff contends entitle it to a mechanic's lien. The defendant Mr. Peper demurred to the petition. The other defendants answered by general denials, except Mr. Beinke, who was not served with process. The demurrer was sustained. Plaintiff declined to plead further, and judgment was rendered for Mr. Peper, defendant. The plaintiff's action was dismissed for want of prosecution as to the other defendants. Later, on stipulation, the cause was reinstated as to the defendants who had answered. In that condition of the record plaintiff sued out the writ of error upon which it is now sought to review the ruling sustaining the demurrer. The writ is premature. The cause is yet pending and undisposed of as to the defendants who answered....