Roy F. Stamm Elec. Co. v. Hamilton-Brown Shoe Co.

• Decision Date: 05 April 1943
• Docket Number: 38391
• Parties: Roy F. Stamm Electric Company, a Corporation, Appellant, v. Hamilton-Brown Shoe Company, a Corporation, James K. Vardaman, Jr., and John W. Lake, Co-Trustees of the Hamilton-Brown Shoe Company, a Corporation, and William H. Killoren, Trustee in Bankruptcy of Hamilton-Brown Shoe Company, a Corporation, Bankrupt, Respondents
• Court: Missouri Supreme Court

171 S.W.2d 580

350 Mo. 1178

Roy F. Stamm Electric Company, a Corporation, Appellant, v. Hamilton-Brown Shoe Company, a Corporation, James K. Vardaman, Jr., and John W. Lake, Co-Trustees of the Hamilton-Brown Shoe Company, a Corporation, and William H. Killoren, Trustee in Bankruptcy of Hamilton-Brown Shoe Company, a Corporation, Bankrupt, Respondents

No. 38391

Supreme Court of Missouri

April 5, 1943

Rehearing Denied May 4, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Reversed and remanded (with directions).

John C. Kappel, Jr., and Walter S. Berkman for appellant.

(1) When plaintiff is granted permission and authority by a Federal Court having jurisdiction over a bankrupt's estate to institute a mechanic's lien suit in a state court, the state court has jurisdiction to enter a judgment against said bankrupt's estate. H. B. Deal & Co Inc., v. Hamilton-Brown Shoe Co., 160 S.W.2d 719. (2) A single lien may be filed against two buildings situated upon contiguous lots. Sec. 3579, R. S. 1939. (3) The mechanic's lien law should be construed with reasonable liberality and liens should not be defeated on mere technical grounds. Richey on Missouri Mechanic's Liens, sec. 9; Langdon v. Kleeman, 211 S.W. 877; Waters v. Gallemore, 41 S.W.2d 870; Mansfield Lbr. Co. v. Johnson, 91 S.W.2d 239; Major v. McVey, 94 S.W.2d 1122; Miners Lbr. Co. v. Miller, 117 S.W.2d 711; Lumber Co. v. Robson, 182 Mo.App. 611. (4) The dedication of a strip of land for an alley creates merely an easement. Neil v. Independent Realty Co., 298 S.W. 363. (5) Two lots owned by the same person are contiguous within the meaning of Section 3579, R. S. 1939, even though said lots are located on opposite sides of an alley in which the public has an easement. Bouvier's Law Dictionary, Baldwin's Edition for 1934; International & G. N. R. Co. v. Boles, 161 S.W. 914; McDaniel Brothers v. Wilson, 45 S.W.2d 293; Hooven, Owens & Rentschler Co. v. John Featherstone's Sons, 11 F. 81.

Harry S. Gleick and Jones, Hocker, Gladney & Grand for respondents; Gleick & Strauss of counsel.

(1) Where a statute has received a given construction by a body whose duty it is to construe it, and such construction is well known at the time the Legislature re-enacts it, and it is re-enacted in substantially the same form, it is presumed that the Legislature adopted that construction. State v. Schenk, 238 Mo. 429, 142 S.W. 263; Timmonds v. Kennish, 244 Mo. 318, 149 S.W. 652; State ex inf. v. Meeker, 317 Mo. 719, 296 S.W. 411; Camp v. Wabash Ry. Co., 94 Mo.App. 272, 68 S.W. 96. (2) The Kansas City Court of Appeals in construing the "contiguous lot statute" was acting within its jurisdiction, and was a court of last resort; accordingly the Legislature in re-enacting the statute in 1909 must be deemed to have adopted the construction given it by that court in Bolen Coal Co. v. Ryan and in Missouri Central Lumber Co. v. Sedalia Brewing Company. State ex rel. v. Shain, 338 Mo. 1208, 93 S.W.2d 992; State ex rel. v. Daues, 313 Mo. 681, 282 S.W. 389; State ex rel. v. Trimble, 307 Mo. 536, 271 S.W. 43; Harrison v. Jackson County, 187 S.W. 1183; Majestic Mfg. Co. v. Reynolds, 186 S.W. 1072; State ex rel. v. Nixon, 133 S.W. 341. (3) No personal judgment should be entered against a bankrupt contractor, but the Court should merely order a finding of indebtedness entered and certified to the federal court. The decision in the case of H. B. Deal & Co. v. Hamilton-Brown Shoe Co., decided by Division 1 of this court, reported 160 S.W.2d 719, on this point should be reversed. Holland v. Cunliff, 96 Mo.App. 67, 69 S.W. 737; United States Fidelity & G. Co. v. Bray, 225 U.S. 205, 56 L.Ed. 1055, 32 S.Ct. 620; Robertson v. Howard, 229 U.S. 254, 57 L.Ed. 1174, 33 S.Ct. 854; In re Kelley, 297 F. 676; Investment Registry v. Chicago & M. Electric Co., 251 F. 510; In re Diamond's Estate, 259 F. 70; Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 84 L.Ed. 876, 60 S.Ct. 628; In re Schulte-United, Inc., 50 F.2d 243; National Automatic Tool Co. v. Goldie, 27 F.Supp. 339; In re Noble, 42 F.Supp. 684.

Douglas, J. All concur except Leedy, J., who concurs in result only.

OPINION

DOUGLAS

This is a mechanic's lien suit for labor and material furnished two connected buildings situated on different lots in the City of St. Louis, brought under a single lien.

The principal question for decision is whether the buildings are located on contiguous lots so that a single lien is sufficient to cover both buildings. If the lots are not contiguous the statute requires separate liens for each building.

The buildings are on three lots located in the same city block. One building covers one lot and a portion of another at the corner of Twenty-first and Olive Streets. The other building is immediately north of the first building and is situated on one lot at Twenty-first and Locust Streets. The buildings are separated by an alley running east and west 19 feet, 4 inches in width which was laid out and dedicated to the public use at the time the block was platted in 1859.

The buildings have long been connected by two overhead enclosed passageways used for the transfer of men and materials back and forth between the two buildings, and wires, pipes and chutes run through them. In addition there are similar pipes, conduits and other connections between the two buildings underneath the surface of the alley, all designed to convert the buildings into a single industrial unit so that they may be used together for every necessary purpose.

Plaintiff used the labor and materials furnished in both buildings and in the two overhead connecting passageways. The work was done under one general contract. There is no dispute about the account. All the necessary requirements for obtaining a lien were met.

Shortly following the completion of the work defendant instituted a proceeding for reorganization in the United States District Court and a trustee in bankruptcy was appointed. Plaintiff was authorized to bring this proceeding in the State court where it was defended by the trustee in bankruptcy.

The trial court found the estate of defendant company was indebted to plaintiff for $ 3,622.03 but held it had no jurisdiction to enter a general judgment for such indebtedness because of defendant's bankruptcy. It denied the lien on the ground the lots were not contiguous because of the public alley between them so that the single lien on both buildings did not satisfy the statute. Plaintiff appealed to the St. Louis Court of Appeals.

That court in a well-reasoned opinion by Commissioner Bennick held that in the purview of the statute the lots were contiguous but certified the case to this court because its decision directly conflicted with two earlier cases of the Kansas City Court of Appeals namely, The Bolen Coal Co. v. Ryan, 48 Mo.App. 512, and Missouri Central Lumber Co. v. Sedalia Brewing Co., 78 Mo.App. 230. Commissioner Bennick's opinion is reported in 165 S.W.2d 437. We agree with the reasoning of that opinion and in the principles therein announced, and incorporate bodily the greater part of it in this opinion.

The statute involved is Sec. 3579, R. S. 1939, which provides as follows: "When the improvement consists of two or more buildings, united together and situated upon the same lot or contiguous lots, or separate buildings upon contiguous lots, or a continuous or connected sidewalk in front or alongside of contiguous lots, and erected under one general contract, it shall not be necessary to file a separate lien upon each building or lot for the work done or materials furnished in the erection of such improvements."

If the lots on which the two buildings are situated are not contiguous within the meaning of this statute, then the lower court was correct in denying the single lien which plaintiff sought. But if the lots may properly be said to be contiguous within the meaning of the statute notwithstanding the existence of the public alley which separates the buildings, then plaintiff was entitled to its lien.

While the word "contiguous" is a relative term and may have a variety of meanings depending upon the sense in which it is used (17 C. J. S., p. 178; 9 Words and Phrases, p. 90), we have no doubt that in the statute now under consideration it has been used in its primary sense as implying actual contact or connection. For the statute to have application, mere close proximity is consequently not enough, but on the contrary, there must be an actual joining or touching of the lots in order for them to be contiguous. Such is the usual and ordinary meaning of the term; and a different meaning should therefore not be attributed to it unless the context in which it appears, the nature of the subject under consideration, and the ultimate purpose to be served should all indicate (which they do not) that it was purposely employed in the particular instance as connoting mere nearness or adjacency without the necessity for actual contact.

The question in the instant case therefore resolves itself into one of whether the existence of the public alley which runs between the buildings constitutes such a separation of the lots as to prevent them from being contiguous, that is, from having actual contact, within the sense and meaning of the statute.

In two cases where the precise question was raised, the Kansas City Court of Appeals has held that lots separated by a public alley are not contiguous so as to permit the enforcement of a single lien upon all the properties. The Bolen Coal Co v. Ryan, 48 Mo.App. 512; The Missouri Central Lumber Co. v. The Sedalia Brewing Co., 78 Mo.App. 230. The trustee of course relies strongly upon these cases in his proper and conscientious endeavor to impartially...