Southwest Nat. Bank of Kansas City v. McDermand

• Decision Date: 12 June 1916
• Docket Number: No. 11672.,11672.
• Citation: 187 S.W. 121
• Parties: SOUTHWEST NAT. BANK OF KANSAS CITY v. McDERMAND et al.
• Court: Missouri Court of Appeals

187 S.W. 121

SOUTHWEST NAT. BANK OF KANSAS CITY v. McDERMAND et al.

No. 11672.

Kansas City Court of Appeals. Missouri.

June 12, 1916.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Suit by the Southwest National Bank of Kansas City against Frank R. McDermand and wife and the J. B. Neevel & Sons Construction Company. Dismissed as to defendants McDermand and personal judgment against the defendant company, and plaintiff appeals. Reversed and remanded.

See, also, 177 S. W. 1106; 181 S. W. 998.

Ellis, Cook & Barnett, of Kansas City, for appellant. Robinson & Goodrich, of Kansas City, for respondents.

TRIMBLE, J.

This was a suit to enforce a materialman's lien. The materials were sold by the Kansas City Terra Cotta Company to the J. B. Neevel & Sons Construction Company, contractor for the erection of a building on lots in Kansas City owned by the defendants Frank R. and Myrtle A. McDermand, which materials were used in the construction of said building. The first item of the account was sold and delivered about July 1, 1912, and the last was on September 17, 1912; the account then amounting to $1,276. Not receiving payment, the terra cotta company, within four months from the accruing of the account, filed its lien statement in proper form in the office of the clerk of the circuit court of Jackson county, Mo., after having given ten days' previous written notice thereof to the owners, the McDermands. Thereafter, on March 31, 1913, the terra cotta company assigned said account and all rights therein to the plaintiff bank. The latter, within 90 days from the date of the filing of the lien, brought this suit to enforce same. The suit was filed April 8, 1913, and summons was at once issued and served upon all defendants, returnable to the May term of court. On May 12, 1913, the McDermands appeared and filed a motion to make the petition more definite and certain. At the November term, November 29, 1913, this motion was sustained. At the January term, January 19, 1914, the plaintiff filed an amended petition. At the same term, to wit, on February 9, 1914, the McDermands filed a motion to strike out this amended petition and to dismiss the suit as to them. At the same term, on April 15, 1914, this motion was sustained, and the case was dismissed as to the McDermands. At the same term, to wit, on April 12, 1914, plaintiff filed a motion to reinstate the dismissed cause and for leave to file its amended petition. This motion was on April 22, 1914, at the same term, sustained, and the amended petition filed on January 19, 1914, was again filed. At the same term, to wit, April 25, 1914, the McDermands again filed a motion to dismiss the case as to them. The first ground of said motion, and the one upon which the court acted as shown by its order, was:

"Because the record shows on its face that, if plaintiff ever had any right to establish and enforce a mechanic's lien upon property of said two defendants or of either of them, such right, if any, had expired, and this court was without jurisdiction to establish or enforce said lien, at the time when the last-amended petition in said action as against said two defendants was filed on, to wit, the 22d day of April, A. D. 1914; and that said court is without jurisdiction to establish or enforce a mechanic's lien on property of said two defendants or of either of them in said action."

On June 13 (May term) 1914, the motion of the McDermands to dismiss as to them was sustained "as to the first ground." The cause was thereupon dismissed as to the McDermands, and judgment was rendered against the defendant construction company. Afterwards, at the same term, and on June 25th, the judgment against the construction company was set aside, and the case was heard, after which a personal judgment was rendered against the construction company for the amount of plaintiff's demand; the judgment reciting that, the "said cause having heretofore been dismissed by the court as to defendants Frank R. McDermand and Myrtle A. McDermand, the court declines to hear evidence touching a mechanic's lien on the property involved, to which ruling of the court in favor of defendants Frank R. McDermand and Myrtle A. McDermand the plaintiff excepts," and further adjudging that:

"Said action having been heretofore dismissed by the court on the 13th day of June, 1914, as to the defendants Frank R. McDermand and Myrtle A. McDermand, upon their motion, plaintiff recover nothing of the defendants Frank R. McDermand and Myrtle A. McDermand and have no lien upon the property of the said Frank R. McDermand and Myrtle A. McDermand, herein involved, and that the said Frank R. McDermand and Myrtle A. McDermand go hence without day and have judgment against the plaintiff herein for their costs herein expended, for all of which let execution issue, to which judgment of the court in favor of defendants Frank R. McDermand and Myrtle A. McDermand the plaintiff excepts."

Without filing a motion for a new trial, the plaintiff appealed; the complaint being that the court erred in dismissing the case as to the McDermands and in refusing to allow plaintiff to enforce the lien against the property owned by defendants.

The basis of defendants McDermands' motion of February 9, 1914, to strike out the amended petition, was that said amended petition, which was filed at a subsequent term without leave of court, was not filed within the time, nor according to other terms and requirements, prescribed by the rules of court. The plaintiff, in its motion to reinstate the case, alleged matters outside the record as an excuse for plaintiff's failure to file the amended petition within the time required, and to show that the other conditions required by said rules were, in fact, complied with. Evidence was heard pro and con on said motion.

The first ground of defendants McDermands' motion to dismiss, dated April 25, 1914, which said first ground is hereinabove quoted and is the ground upon which the court acted in again dismissing the case as to the owners, had for its basis the same reason...