Stebed v. Stock
| Decision Date | 31 March 1862 |
| Citation | 31 Mo. 456 |
| Parties | NICHOLAS STEBED, Plaintiff in Error, v. DOMINIQUE STOCK, Defendant in Error. |
| Court | Missouri Supreme Court |
1. In a suit under the Mechanics' Lien Act, (R. C. p. 1067,) the lien must be filed within ninety days after the work and labor done or materials furnished; and if the lien be not filed within the time prescribed, the St. Louis land court has no jurisdiction to enter up a general judgment for the value of the work and materials against the person contracting therefor.
Error to the St. Louis Land Court.
This was a suit upon a mechanic's lien, filed in May, 1857, the cause of action having occurred in November, 1856, brought in the St. Louis land court. At the trial the plaintiff proved his account, and asked for judgment for the value of the work and labor, and materials.
The court gave the following instruction as prayed by defendant:
If the jury find from the evidence in this cause that the plaintiff in this case did not file a just and true account of his demand against defendant within ninety days after all the things claimed in said account were furnished, and the work and labor claimed for done and performed, they will find for the defendant.
Plaintiff asked the following instruction, which was refused:
If the jury believe from the evidence that there was a contract entered into between plaintiff and defendant, in March, 1856, for the performance of certain work, and that this work was completed in November, 1856, and other work was done by plaintiff at defendant's instance in continuation of the contract work; that within six months after all the materials were furnished, or work and labor done, plaintiff filed his lien for such work, labor and materials, then he is entitled to recover for such work, labor and materials, such sum as the jury shall believe from the evidence to be due and unpaid.
The plaintiff took a non-suit, with leave to move to set the same aside. The motion was overruled.A. J. P. Garesché, for plaintiff in error.
Having proved the debt, although he failed to establish his right to a lien, the plaintiff was entitled to a general judgment. (Patrick v. Abeles, 27 Mo. 184.)
This cause was heretofore submitted to the court, and an opinion prepared by Judge Ewing, in which Judge Napton concurred, but no judgment was entered. The parties, before knowing what that opinion is, have agreed that judgment may be entered in accordance with it.
The judgment below is therefore affirmed, all the judges concurring.
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...to make the order, otherwise the judgment will be void. R. S. 1865, pp. 252, 253, §§ 2, 3, 4; State v. Woodson, 41 Mo. 227; Stebed v. Stock, 31 Mo. 456; McCoy v. Zane, 65 Mo. 11; Railroad Co. v. Campbell, 62 Mo. 585; Wood v. Boots, 60 Mo. 546; Ells v. Railroad Co., 51 Mo. 200; People v. Bro......
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...overruled, he appealed. Garesché, Garesché & Farish, for appellants. I. Plaintiff was entitled to a general judgment. (27 Mo. 184; Stebed v. Stock, 31 Mo. 456.) II. The contract being with the owner, the first lien is no bar to the second; it would be otherwise if the rights of third person......