State ex rel. Harrington v. Trimble

• Decision Date: 14 October 1930
• Docket Number: No. 29866.,29866.
• Citation: 31 S.W.2d 783
• Parties: THE STATE EX REL. EDMUND C. HARRINGTON and WILLIAM H. MAY v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.
• Court: Missouri Supreme Court

31 S.W.2d 783

THE STATE EX REL. EDMUND C. HARRINGTON and WILLIAM H. MAY v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.

No. 29866.

Supreme Court of Missouri.

Division One, October 14, 1930.

Certiorari to Kansas City Court of Appeals.

WRIT QUASHED.

W.B. Kelley for petitioners.

(1) In Construing Sec. 7220, R.S. 1919, the court in its opinion is in direct conflict with Dierks & Son Lumber Company v. Morris, 170 Mo. App. 212, which was not called to the court's attention by any of the parties to this cause, but the court did have that decision in mind when rendering its decision in this cause. (2) The court's opinion is also in conflict with the other controlling decisions which were called to the court's attention, to-wit: Powell v. Reidinger, 234 S.W. 850; Ward v. Nolde, 259 Mo. 285, 168 S.W. 596. (3) The court overlooked the true state of facts and also overlooked the correct interpretation of Sec. 7220, R.S. 1919, because the court, by its opinion, has sustained a judgment in favor of the respondents and against the entire building, owned by the appellants. The building in question was a part of the fee-simple title and had been for a number of years prior to the time that either of the respondents had furnished any materials or performed any labor in connection with repairs made to the then existing building, under contract with the lessee. (4) In construing Section 7220, then known as 8212, R.S. 1909, the court necessarily construed that section in connection with Sec. 8214, R.S. 1909, which is Sec. 7218, R.S. 1919, in determining what the statue means where it refers to "the owner" against whose interest the lien is to be established.

E.C. Hamilton for respondents.

(1) This court in passing upon the matter of certiorari to the Court of Appeals is concerned only with two things: First, the opinion of the Kansas City Court of Appeals that is called into question and the record upon which the same is based. Second: The controlling opinion of the Supreme Court said to be violated by the appellate court's decision. State ex rel. Dunham v. Ellison, 213 S.W. 460; State ex rel. Grocery & Bakery Co. v. Haide, 18 S.W. (2d) 478; State ex rel. v. Calvird, 24 S.W. (2d) 111. (2) This court in a proceeding in certiorari directed to the Court of Appeals will not determine whether or not the decision of the appellate court is in conformity with the statute if the appellate court had jurisdiction in the premises. State ex rel. Teasdale v. Smith, 101 Mo. 174; State ex rel. Tummons v. Cox, 313 Mo. 672.

ATWOOD, J.

Petitioners, who were defendant landowners in the case of Martin-Welch Hardware & Plumbing Company, a corporation, against O.E. Moor, Edmund C. Harrington and William H. May, lately decided in the Kansas City Court of Appeals, seek to quash the opinion and record of said court therein by certiorari.

The appeal was by defendant landowners from a judgment establishing a mechanic's lien under Section 7220, Revised Statutes 1919, on a factory building and improvements. The opinion of respondent states the facts thus:

"Defendants owned the building and the ground on which it was located. For several years it had been used as an automobile-tire factory, but on September 1, 1926, it was leased to one O.E. Moor for a term of two years at a rental of $100 per month, with an option in the lessee to renew for three years longer at an increased rental. A supplementary contract under the same date gave lessee an option for a further renewal of five years, and an option to purchase within three years from date for $15,000 `upon reasonable terms.'

"The lessee purposed to equip and use the premises as a laundry. By the terms of the lease he was `allowed to make such changes in the building as will be necessary to carry on his business and all such changes, additions, etc., to be made at the expense of party of the second part' (lessee). It was further provided that lessee should not `make any alterations, amendments or additions to any of the buildings on said premises, or fixtures therein, without the written consent of parties of the first part.' The lease then provided that upon default in rent or other performance the lease should be forfeited, and that lessors might at once cancel same without notice and reenter.

"The lessee, Moor, took possession of the premises and made the contracts for which the present lien was asked. That with plaintiff Martin-Welch Hardware & Plumbing Company was for material and labor expended between September 1, 1926, and January 11, 1927, in equipping the building for laundry purposes, and that with plaintiff Clements was for carpenter work on and within the building between September 6th and October 5, 1926. The evidence showed that defendants visited the premises from time to time during the progress of the work, but assumed no authority or direction over it.

"After operating the laundry about five months the lessee, Moor, abandoned the premises without having paid any rent, which then amounted to $500, and the lessors resumed possession (on a date not definitely shown in evidence). At that time the company which had sold lessee his laundry machinery had retaken their property, as had also the electric light company.

"Plaintiff Martin-Welch Hardware & Plumbing Company brought its action in equity for the establishment and enforcement of its lien; and plaintiff...