Southwest Nat. Bank v. McDermand

• Decision Date: 14 June 1915
• Docket Number: No. 11672.,11672.
• Citation: 177 S.W. 1106
• Parties: SOUTHWEST NAT. BANK OF KANSAS CITY v. McDERMAND et al.
• Court: Missouri Court of Appeals

177 S.W. 1106

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

No. 11672.

Kansas City Court of Appeals, Missouri.

June 14, 1915.

Rehearing Denied July 2, 1915.

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

Action by the Southwest National Bank of Kansas City against Frank R. McDermand and others. From a judgment of dismissal as to certain defendants, plaintiff appeals. Affirmed.

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

JOHNSON, J.

Plaintiff, as the assignee of the Kansas City Terra Cotta Company, filed this suit April 8, 1913, to enforce a mechanic's lien for certain materials of the total value of $1,276, furnished under contract with the defendant construction company for a building being erected by the latter company for the defendants Frank R. and Myrtle A. McDermand, on certain lots in Kansas City owned by them. The defendants were served with summons, and on May 12, 1913, the McDermands filed a motion to make the petition more definite and certain, which the court sustained, November 29, 1913, as to the third paragraph of the motion, which was as follows:

"To require and compel plaintiff to more definitely and certainly state what were the several items, if any, of terra cotta furnished by the Kansas City Terra Cotta Company to J. B. Neevel & Sons Construction Company pursuant to the contracts aforesaid or used in the building aforesaid and sued for in this action, and state what were the kinds, qualities, quantities, and values of each and every item of terra cotta furnished by plaintiff to J. B. Neevel & Sons Construction Company, and used in the building mentioned in the petition, and sued for in this action, and state the dates when each and every such item was so used in said building, and by whom it was so used."

Pursuant to this ruling plaintiff filed an amended petition January 9, 1914, and on February 9th the McDermands filed their motion to strike out the amended petition and to dismiss the suit as to them. This motion was sustained, and the McDermands were dismissed from the suit. Two days later plaintiff filed a motion to set aside the order of dismissal and to reinstate the action against the McDermands, which the court heard and sustained April 22d; the McDermands excepting to that ruling.

April 25th the McDermands filed a motion that the cause be dismissed as to them on the following grounds:

"(1) 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 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. 1014, and that said court is without jurisdiction to establish or enforce a mechanic's lien on property of said two defendants or either of them in said action.

"(2) Because the record shows on its face that plaintiff has not sued the person or persons who, if anybody, contracted and owed the debt on the account filed as the foundation for the right of action in said suit, and as the basis of the alleged claim for a mechanic's lien on the real estate and building alleged in the original petition and amended petitions to be owned by said Frank R. McDermand and Myrtle A. McDermand and to be subject to said claim for a mechanic's lien sought to be established and enforced thereon.

"(3) Because J. B. Neevel and R. B. Neevel, copartners doing business under and by the partnership firm name and style of J. B. Neevel & Sons Construction Company have not been made defendants in this action, and this court is, and ever was, without jurisdiction to establish and enforce a mechanic's lien herein without them."

There was a hearing of this motion June 13th, at which evidence was introduced in support of each of the alleged grounds. The court ruled that the first ground of the motion was well taken, dismissed the McDermands, and rendered judgment on the petition against the defendant construction company, and plaintiff excepted to this ruling. Afterward, on June 25th, the court set aside the judgment against the construction company, and heard the case after which it rendered a personal judgment against the construction company for the amount of plaintiff's demand, and further adjudged:

"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...