State ex rel. Great Lakes Steel Corp. v. Sartorius

• Decision Date: 09 June 1952
• Docket Number: No. 43019,43019
• Parties: STATE ex rel. GREAT LAKES STEEL CORP. v. SARTORIUS.
• Court: Missouri Supreme Court

Page 853

249 S.W.2d 853

STATE ex rel. GREAT LAKES STEEL CORP. v. SARTORIUS.

No. 43019.

Supreme Court of Missouri, en Banc.

June 9, 1952.

Kahn and Kahn, Max Kahn, Kenneth F. Kahn, Detroit, Mich., Behrendt, Shockley & Searing, August F. Behrendt, Percy A. Shockley, Kansas City, Mo., of counsel, for relator, Great Lakes Steel Corp.

William J. Becker, Clayton, Leo F. Laughren, St. Louis, for respondent.

TIPTON, Judge.

This is an original action in prohibition to prohibit the respondent from proceeding to try an equity action filed in the circuit court of the city of St. Louis on June 5, 1951, styled Kay Hansen and Hansen Construction Company v. Great Lakes Steel Corporation and H. B. Deal & Co., Inc.

It is the contention of relator that as it had previously filed an equitable mechanic's lien suit in the circuit court of Jackson County against the Hansen Construction Company, an Illinois corporation, Van Brunt Boulevard Homes, Inc., H. B. Deal & Co., a Missouri corporation, Richard S. Richter, trustee for New York Life Insurance Company, a New York corporation. New York Life Insurance Company and the Central Surety and Insurance Corporation, a Missouri corporation, that respondent does not have jurisdiction to try the case filed by plaintiffs. This equitable mechanic's lien action was filed on December 2, 1950.

On the other hand, the respondent in the prohibition action contends that the plaintiffs in the case pending before him are not seeking a lien but are seeking damages growing out of a breach of contract that plaintiffs had with relator. The subject matter of the suit pending before respondent and the subject matter of the equitable mechanic's lien suit pending in Jackson County grew out of the same transactions.

The facts out of which the transactions grew are as follows: The Van Brunt Boulevard Homes, Inc., is the owner of a certain tract of land located in Kansas City, Missouri. It entered into a contract with H. B. Deal & Co., Inc., as general contractor, for the erection and building of a 48 unit multiple apartment on this tract of land. Thereafter, H. B. Deal & Co., Inc., as general contractor, entered into a sub-contract with Hansen Construction Company and Kay Hansen, a resident of Illinois and an officer of that corporation, for the supplying and erecting of all of the stran-steel required in the housing project. Later, the Hansen Construction Company entered into a contract with relator for the purchase of the stran-steel, pursuant to which all of the stran-steel was sold and delivered to Hansen Construction Company.

The relator's invoices for the stransteel totaled $133,690.89 on which $102,891.94 was paid by H. B. Deal & Co. Inc. for the account of Hansen Construction Co., by three checks payable to Hansen Construction Co. and relator. These checks were endorsed by Hansen Construction Co. to relator.

In the case before the respondent, the plaintiffs' petition alleges that relator entered into a contract with plaintiffs; that relator breached the terms of its contract, and that the plaintiffs suffered damages as a result thereof; and that by virtue of the alleged breach of contract on the part of relator the plaintiffs below were unable to fulfill the terms of another contract with H. B. Deal & Co., Inc., out of which a claim has arisen and has been asserted by the defendant H. B. Deal & Co., Inc., against the plaintiffs. The petition also alleges that the claim cannot be adjudicated without full adjudication of the claim of plaintiffs against relator. The prayer of the petition is for equitable relief and damages against relator and for a full adjudication of the claim of the defendant H. B. Deal & Co., Inc.

The relator filed a motion to dismiss the plaintiffs' petition for the reason it was filed subsequent to the filing of relator's equitable mechanic's lien suit in the circuit court of Jackson County, but it was overruled by respondent.

The respondent in his brief frankly admits that if the suit pending before him were for the enforcement of a mechanic's lien or claim against the property involved it should have been dismissed because it was filed subsequent to the relator's mechanic's lien suit, but respondent asserts that the action before him is 'not brought upon any mechanic's lien or claim against the particular property involved or any of it, and the provisions in Section 429.300, RSMo 1949, V.A.M.S., providing that the rights of all persons shall be adjusted, adjudicated and enforced in such equitable suit refers back to the matters mentioned in the sentence, namely, a mechanic's lien or claim against said property or any of it.'

Section 429.300, supra, reads:

'The equitable action above provided for shall be brought in the proper court of record regardless of the amount claimed by the plaintiff or plaintiffs in such action, and all other suits that may have been brought on any mechanic's lien claim or demand shall be stayed and no further prosecuted, and the parties in any such other suit shall be made parties to such equitable action as in the foregoing sections provided, and any costs rightfully accrued in behalf of any lien claimant in any such other action shall be and become a part of the lien claim of such party. After the institution of such equitable action no separate suit shall be brought upon any mechanic's lien or claim against said property, or any of it, but the rights of all persons shall be adjusted, adjudicated and enforced in such equitable suit.'

In the case of Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274, 281, the St. Louis Court of Appeals held that after an equitable mechanic's lien suit was filed, a subsequent mechanic's lien suit was properly dismissed by the trial court. The plaintiff in that case contended that even though he could not maintain the lien action, yet he was entitled to a personal judgment against the defendant. In overruling that contention, that court said:

'But we do not believe that this rule is of avail to plaintiff in the present case. The lien prayed for is but incidental to the money judgment prayed for, in that the lien claimant must have either a money judgment or a finding of an indebtedness to support the adjudication of his lien. In other words, a mechanic's lien suit or action must necessarily always involve both elements. Now it is well enough to say that where the lien claimant is entitled to bring and prosecute is suit, he may recover his personal judgment, if on personal service, notwithstanding the fact that for technical reasons he may fail in the enforcement of his lien against the property. But here section 3183 provides that after an equitable mechanic's lien suit of the character of the Boeckeler Lumber Company suit is instituted, no separate suit shall be brought upon any mechanic's lien or claim against the property. Consequently plaintiff had not right even to bring its...