State ex rel. Erbs v. Oliver

• Decision Date: 12 February 1951
• Docket Number: No. 42217,42217
• Citation: 237 S.W.2d 128,361 Mo. 836
• Parties: STATE ex rel. ERBS et al. v. OLIVER, Judge. *
• Court: Missouri Supreme Court

Page 128

237 S.W.2d 128

361 Mo. 836

STATE ex rel. ERBS et al. v. OLIVER, Judge.

No. 42217.*

Supreme Court of Missouri, en Banc.

Feb. 12, 1951.

Rehearing Denied March 12, 1951.

Stephen Barton and Thomas L. Arnold, Benton, Oliver F. Erbs, St. Louis, for relators.

R. Kip Briney and Joe Welborn, Bloomfield, for respondent.

R. B. Oliver, III, pro se.

HYDE, Judge.

Prohibition to prohibit respondent Judge from proceeding in two mechanics' lien suits at law which he ordered consolidated with a previously filed equitable mechanics' lien action. The preliminary rule in prohibition of the Springfield Court of Appeals was made absolute, State ex rel. Erbs v. Oliver, 230 S.W.2d 799; but on application of respondent we transferred the cause.

Relators were defendants in the mechanics' lien suits at law, and also in the equitable action, except Leona Erbs who later acquired title to the property involved. Originally there were two separate prohibition cases in the Court of Appeals, but they were consolidated. The equitable action, No. 7517 in the Circuit Court, was filed July 27, 1948. At that time, the mechanics' liens, which the two later suits at law sought to enforce, had been filed: one on May 21, 1948 and one on July 1, 1948. Suit on the lien filed in May, No. 7538, was commenced August 19, 1948; and suit on the other, No. 7554, was commenced September 15, 1948. Relators filed motions to dismiss these suits on March 14, 1949, and they were overruled on August 29, 1949; a judgment by default had been taken in the equitable action on January 10, 1949.

However, the judgment entered was set aside on August 29, 1949 as defective on the face of the record because not responsive to the pleadings and not the kind of a judgment that could be entered in such a mechanics' lien action. It was a personal judgment in favor of all of the separate lien claimants jointly against all of the defendants, some of whom were trustees and mortgagees, without ordering a lien on any property. Such a judgment was subject to being set aside on motion of any interested party under the authority of Sec. 1267, R.S.1939, Mo.Stat. Ann., R.S.1949, Sec. 511.250, Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1; Badger Lumber Co. v. Goodrich, 353 Mo. 769, 184 S.W.2d 435. Whether Sec. 1267 authorizes such action on the Court's own motion is not raised or involved under the pleadings in this case. Nevertheless, since it was not the kind of a judgment which could have been entered under the pleadings and on the record in this case, it was coram non judice and void. See Noyes v. Stewart, Mo.Sup., 235 S.W.2d 333 and cases cited; see also 31 Am.Jur. 299, Sec. 760; 49 C.J.S., Judgments, Sec. 230, page 444. When the Court set aside this judgment, the two plaintiffs in the mechanics' lien suits at law filed motions to consolidate these actions, 7538 and 7554, with the equitable suit 7517.

The contentions of relators are that since case No. 7517 is an equitable mechanics' lien action, it is exclusive of all other remedies; that no other separate mechanics' lien suit may be brought after its institution, as was attempted to be done in the suits at law herein; and that any such suit so filed after the commencement of such an equitable action is a nullity, without any effect whatever, and cannot operate to preserve the plaintiff's lien therein claimed or present any claim that can be consolidated with the equitable action. In short, they say that after an equitable action is begun the only recourse of a lien claimant is to file a proper timely pleading in the equitable action. They particularly rely on Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274; Mansfield Lumber Co. v. Johnson, Mo.App., 91 S.W.2d 239; and Imse-Schilling Sash & Door Co. v. Kellems, 237 Mo.App. 960, 179 S.W.2d 910. Respondent cites Manchester Iron Works v. E. L. Wagner Const. Co., 341 Mo. 389, 107 S.W.2d 89; Lee & Boutell Co. v. C. A. Brockett Cement Co., 341 Mo. 95, 106 S.W.2d 451; and Chance v. Franke, 348 Mo. 402, 153 S.W.2d 378.

Provisions for an equitable action were adopted in 1911, Laws 1911, p. 314, and others were added in 1913, Laws 1913, p. 408; they became Secs. 3570-3577, R.S.1939, Mo.R.S.A.; now Secs. 429.270-429.340, R.S.1949. These provisions authorize the determination of all liens and the rights of all persons in any property in one equitable action which may be brought by any lien claimant, owner, lessee or mortgagee of the property. Sec. 3570. Any of them may join as plaintiffs and 'all persons claiming any lien or encumbrance upon, and all persons having any rights in or against and all owners and lessees of said property to be affected and any of it, all as may be disclosed by the proper public records, shall be made parties to said action'; and those who do not join as plaintiffs 'shall be made defendants.' Sec. 3571, R.S.1949, Sec. 429.280. This section further provides that if 'any person whose rights are disclosed by the record is omitted as a party, he may thereafter be made party to said action either upon his own application or upon the application of any other party to said action or by the court of its own motion.' (Our italics.)

Thus it is clear that all persons who have any interest in the property shown by proper public records are necessary parties and it is the duty of the plaintiffs, and of all parties, to bring them in; even the Court has the duty to see they are made parties and may bring them in of its own motion. Sec. 3552, R.S.1949, Sec. 429.090, requires the clerk of the circuit court to keep a book containing abstracts of all liens filed showing the name of the person seeking to enforce it, a description of the property charged and the name of the owner. Certainly this is a proper public record within the meaning of Sec. 3571 and all persons whose names are disclosed by it should be made parties when an equitable action is commenced. It is true that Sec. 3562, R.S.1949, Sec. 429.170, requires actions on liens to be commenced within ninety days after the lien is filed or the lien ceases to exist. However, Sec. 3577, R.S.1949, Sec. 429.310 provides, when an equitable action is commenced, this requirement is fulfilled if within such ninety day period a summons is issued to the lien claimant and he files answer or other proper pleading 'at the time required by law on a summons, in such equitable action'. It is also fulfilled, whether the lien claimant is made a party or not, by 'any answer, or other pleading, or motion, or entry of appearance followed by pleading in due course, filed or made in any such equitable action by any mechanics' lien claimant, within ninety days after the preliminary statement for the lien of such claimant has been filed.' Therefore, the plain intent of the equitable mechanics' lien act was that all persons who had filed liens should be made parties to any equitable lien action when it was commenced and be served with summons promptly so that there would be no need for them to begin any suit or do anything to preserve their liens except plead at the proper time in such equitable action.

Sec. 3576, R.S.1949, Sec. 429.290, provides that after such equitable action is commenced, it 'shall be exclusive of other remedies for the enforcement of mechanic's liens'. Sec. 3573, R.S.1949, Sec. 429.300 provides, when an equitable action is brought, all other suits on...