Quigley v. William M. Rideout & Co.
| Decision Date | 04 April 1939 |
| Docket Number | No. 24884.,24884. |
| Parties | QUIGLEY v. WILLIAM M. RIDEOUT & CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Ernest F. Oakley, Judge.
"Not to be reported in State Reports."
Action to establish a mechanic's lien by William D. Quigley against William M. Rideout & Company, Incorporated, a corporation, and others. Plaintiff took an involuntary nonsuit as to all defendants with leave to move to set aside the nonsuit, and from a judgment denying motion to set aside the involuntary nonsuit, plaintiff appeals.
Reversed and remanded in part and in part affirmed.
Walter Lambert and Newell S. Ferry, both of St. Louis, for appellant.
Richard F. Moll and Rudolph K. Schurr, both of St. Louis, for respondents.
SUTTON, Commissioner.
This action, to establish a mechanic's lien, was commenced in the Circuit Court of the City of St. Louis, on October 4, 1924. A summons was duly issued returnable to the December term, 1924, and was duly served on defendants Louis C. Heilman, Laura L. Heilman, Theodore Hemmelmann, Jr., and Richard C. Spackler, and there was a non est return as to defendant William M. Rideout and Company.
On September 25, 1934, plaintiff filed an amended petition, wherein it was alleged, inter alia, that the charter of defendant William M. Rideout and Company as a corporation had been forfeited by the State of Missouri, and that William M. Rideout, Viola Rideout, and J. Wilson Byrne were the last board of directors and last stockholders of said corporation, and that since the commencement of this action defendant Louis C. Heilman had died, and that defendants Carrie L. Wythe and Lulu Knapp were the heirs of said Louis C. Heilman.
On March 24, 1936, William M. Rideout and Viola Rideout entered their appearance and waived service of process as the only surviving members of the last board of directors of William M. Rideout and Company. They filed no answer.
J. Wilson Byrne was not served with process and made no appearance.
Theodore Hemmelmann, Jr., and Richard C. Spackler did not answer.
On May 20, 1936, defendants Carrie L. Wythe and Lulu Knapp filed their separate answer, duly verified, wherein they denied generally the allegations of the petition and denied specifically that defendant William M. Rideout and Company was at the time of the commencement of this action or thereafter a corporation duly organized and existing according to law, and alleged that plaintiff did not commence this action within ninety days after the filing of his lien account.
On or about May 22, 1923, Louis C. Heilman and Laura L. Heilman as owners of a certain lot on South Compton Avenue, in the City of St. Louis, entered into a contract with William M. Rideout and Company for the erection upon said lot of a two-story brick flat building. Pursuant to such contract the building was erected and completed. Plaintiff under a contract with William M. Rideout and Company performed and furnished all the carpenter work in the erection and completion of said building. He began the carpenter work on May 2, 1923, and completed the work on May 1, 1924. On July 7, 1924, he duly filed his lien account in the office of the Clerk of the Circuit Court in the City of St. Louis. The items of the account are as follows: 589 hours carpenter's time at $1.75 per hour, $1030.75; 593½ hours carpenter's time at $1.65 per hour, $979.23; 592¾ hours helper's time at $1.10 per hour, $652.02; total $2662; to credit by cash paid $1050; balance due $1612.
Laura L. Heilman died on December 12, 1925, and Louis C. Heilman died on December 31, 1925. Louis C. Heilman and Laura L. Heilman were husband and wife, and owned the property in question as tenants by the entirety. Carrie L. Wythe and Lulu Knapp are the daughters and only heirs of Louis C. Heilman.
Defendants Theodore Hemmelmann, Jr., and Richard C. Spackler were respectively trustee and cestui que trust named in two deeds of trust covering the property in suit. Pending the suit and before the trial, these deeds of trust were paid and satisfied and released of record.
The cause was tried to a jury. At the conclusion of plaintiff's evidence in chief the court, at the request of defendants Carrie L. Wythe and Lulu Knapp, gave to the jury an instruction in the nature of a demurrer to the evidence as to defendants Louis C. Heilman, Laura L. Heilman, Carrie L. Wythe and Lulu Knapp, and of its own motion gave a further instruction in the nature of a demurrer to the evidence as to defendants William M. Rideout and Company, Theodore Hemmelmann, Jr., Richard C. Spackler, William M. Rideout, Viola Rideout and J. Wilson Byrne. Thereupon, plaintiff took an involuntary nonsuit as to all the defendants with leave to move to set the same aside. Judgment was given accordingly. After an unavailing motion to set aside the involuntary nonsuit, plaintiff appealed.
Plaintiff assigns error here for the giving of the instructions in the nature of demurrers to the evidence. Defendants justify the giving of the instructions on the ground that the action was not commenced against all the necessary parties within ninety days after the filing of the lien account. Defendants urge in argument that there was no showing that William M. Rideout and Company was a corporation at the time of the commencement of the action or thereafter, and that the last board of directors of the corporation were not made parties until the period of ninety days succeeding the filing of the lien account had elapsed.
The filing of the verified answer denying that William M. Rideout and Company was a corporation at the time of the commencement of the action or thereafter put upon the plaintiff the burden of showing the existence of the corporation at that time. Bevan v. Hill, Mo.App., 284 S. W. 174; Horine v. Clear, Mo.App., 2 S. W.2d 154; White v. Bellefontaine Lodge, 30 Mo.App. 682.
Section 4622, R.S.1929, Mo.St.Ann. § 4622, p. 2051, provides that when the forfeiture of the certificate, or license, of any corporation has been...
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