Steininger v. Raeman

• Decision Date: 17 January 1888
• Parties: JOHN A. STEININGER, Respondent, v. F. RAEMAN et al., Appellants.
• Court: Missouri Court of Appeals

28 Mo.App. 594

JOHN A. STEININGER, Respondent, v. F. RAEMAN et al., Appellants.

Court of Appeals of Missouri, St. Louis.

January 17, 1888

APPEAL from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.

Reversed and remanded, with directions.

W. F SMITH and D. D. FASSETT, for the appellants: The court erred in refusing leave to appellants to file the answer proposed by them. The practice in the appellate court shall govern. Phillips on Mech. Liens, secs. 243-4; Thaxter v Williams, 14 Pick. 49; Ettridge v. Bassett, 106 Mass. 314; 3 Pom. Eq. Jur., sec. 1253, note 3; Hilliard on Vendors [2 Ed.] 5; Kellogg v. Kellogg, 6 Barb. 116. The court erred in overruling appellants' objection to a jury trial, and their claim that the cause involved equitable matters and should be tried by the court. 1 Story Eq. [13 Ed.] sec. 553. The court erred in overruling defendants' objection to the introduction of any and all evidence, because no cause of action was stated in the petition. The court erred in overruling appellants' objection to the introduction in evidence of the mechanic's lien, the objection being that it did not specify the nature and kind of work claimed to have been done, and was indefinite and insufficient in law to create a lien as against these appellants. Kling v. Construction Co., 7 Mo.App. 410; Russell v. Bell, 44 Pa.St. 417; Carson v. White, 6 Gill [[[[[[Md.] 17; Trustees v. Heise, 44 Md. 473; Shackelford v. Beck, 80 Va. 576; Foster v. Wulfing, 20 Mo.App. 85; Heinrich v. Gymnastic Society, 8 Mo.App. 587-8; McWilliams v. Cullen, 45 Mo. 573; S. C., affirmed, 86 Mo. 278. The court erred in sustaining plaintiff's objections to the questions asked of the witness, Smith, respecting the agreement with Raeman, under which the conveyances were made and purchase money secured, and in excluding evidence of the agreement of the parties as to the beginning of the improvements upon the land. Ettridge v. Bassett, 126 Mass. 314; Thaxter v. Williams, 14 Pick. 49; Hilliard on Vendors [2 Ed.] 5; Kellogg v. Kellogg, 6 Barb. 116. The court erred in neglecting to check and admonish counsel for plaintiff, when he stated to the jury, in his closing address, in a very earnest and emphatic manner, that it was an effort on the part of O'Reilly and Howard to swindle the mechanic, etc., and in stating to the jury that the witness, Smith, had signed the bond for the appeal in the justice's court, and in exhibiting said bond and signature to the jury, said bond not having been offered or put in evidence. And erred in failing to direct the jury to disregard such statements and documents. State v. Bartram, 82 Mo. 67; Gibson v. Zeibig, 24 Mo.App. 65; Holliday v. Jackson, 21 Mo.App. 660; Thompson on Jury Charges, 134-5; Hayne on New Trials, sec. 50, p. 156; Martin v. Orndorf, 22 Iowa 504; Rolfe v. Rumford, 66 Me. 574; Ferguson v. State, 49 Ind. 33; Butler v. Seam, 50 Pa.St. 459.

TAYLOR & POLLARD, for the respondent: The court did not err in refusing leave to file the answer of appellants. (1) Because the matter set up in the answer, if true, constituted no defence as to plaintiff's lien. The acceptance of a deed of trust to secure the purchase money, even when taken by the vendor, is a waiver of vendor's lien, in this state. Certainly Howard is in no position to claim a vendor's lien. Partridge v. Logan, 3 Mo.App. 509; Pearl v. Hervey, 70 Mo. 160; Sharp v. Collins, 74 Mo. 266; Briscoe v. Callahan, 77 Mo. 134; Orrick v. Durham, 79 Mo. 177; Faber v. Purdy, 60 Mo. 602. (2) Because suit was begun in a justice's court, and according to the law and practice in such courts a written answer was not necessary. (3) Because the statute provides that, on appeal from the justice, the same cause of action tried before the justice, and no other, shall be tried in the circuit court. The court did not err in allowing a jury trial. Plaintiff's action was one which unquestionably entitled him to a trial by jury. Simpson v. Watson, 15 Mo.App. 429; Peacock v. Nelson, 50 Mo. 260. Nor can plaintiff be deprived of his right of trial of his action by jury, because of equitable defences set up by the answer. In such cases " the test of a right of trial by jury is the action and not the defences or the issues." Smith v. Canning Co., 14 Mo.App. 522; Davis v. Morris, 36 N.Y. 569; Pitcher v. Hennessey, 48 N.Y. 415; Maher v. Ins. Co., 67 N.Y. 283; Canter v. Prior, 78 Mo. 222; Plow Co. v. Hartman, 84 Mo. 610.

OPINION

THOMPSON J.

This action was brought against the defendant, Raeman, as owner, and the defendant, O'Reilly, as trustee, and the defendant, Howard, as beneficiary in a mortgage deed of trust, before a justice of the peace, to enforce a mechanic's lien upon a certain building and ground in the city of St. Louis, a description of which will more fully appear from the language of the complaint, which was as follows: " That, on or about said day, said defendant began the construction of a new two-story brick building fronting on Evans avenue in said city of St. Louis, state of Missouri, designed for four flats, but all under one roof and constituting one building, and situated on the following described premises, viz: Lots numbered ten and eleven of city block number 1864 of said city, said lots being also known and described as lots ten and eleven, of block three of D. D. Page's third western addition to the city of St. Louis, state of Missouri, of record in the recorder's office of said city, said lots having together a front of fifty (50) feet on Evans avenue, and extending northwardly to Easton avenue, and they are bounded, north by Easton avenue, east by lot twelve of said block, south by Evans avenue, and west by lot nine of said block; that, immediately before the beginning of said building the defendant, Raeman, contracted with divers persons for the doing of different kinds of work, to be done in order to fully complete said building, including the work herein sued for, and all work used in constructing said building was done as parts of one original design or improvement had in contemplation by the defendant from the time the soil was broken for the foundation until said building should be completed. that, on or about March 2, 1887, defendant, Raeman, contracted with plaintiff to do work on said house and agreed to pay him thirty (30) cents an hour therefor; that, in pursuance of said contract, he did work one hundred and twenty (120) hours on said building, which items were all furnished, beginning March 3, and ending with March 19, 1887; that the same were reasonably worth thirty-six dollars and said Felix Raeman agreed to pay that sum for same; that no part has been paid. that the last of said work was done on the nineteenth day of March, 1887, on which day plaintiff's said claim accrued and payment was demanded but refused. Plaintiff further says that, on the twenty-eighth day of March, 1887, he filed with the clerk of the circuit court of said city a just and true account of the said demand due him after all just credits had been given, which was to be a lien upon the land and building aforesaid, together with a true description of said property, or so near as to identify the same as aforesaid, with the name of the owner and contractor, all verified by the oath of the plaintiff; and now, within ninety days after filing said lien, he brings this suit to enforce the same. Plaintiff further says that, on the seventeenth day of November, 1886, the defendant, Raeman, placed a deed of trust on said lot, making the defendant, M. B. O'Reilly, the trustee therein to secure to defendant, Howard, a note for three thousand dollars, due in one year with interest, which said deed of trust is recorded in the recorder's office of said city, in book 801, at page 507; that, prior to the bringing of this suit, plaintiff filed in the office of the clerk of the circuit court of said city his notice showing that he would, on the twenty-eighth day of March, 1887, bring suit to enforce said lien before Patrick Sheehan, Esq., a justice of the peace within and for said city. Wherefore plaintiff prays judgment against defendant, Raeman, for thirty-six dollars and interest and costs, and that the same may be adjudged a lien on said building and ground prior to said deed of trust, and for an order selling said premises to satisfy said judgment."

Such proceedings took place that, in the trial which was had in the circuit court, a jury brought in the following verdict " We, the jury, find for the plaintiff and that he has established a mechanic's lien for the sum of thirty-six (36) dollars against the building in the complaint described, and that such lien is prior to that of defendants, O'Reilly and Howard, as to the lots also in the complaint described." We quote the language of this verdict because it is peculiar and confusing. It finds that the plaintiff has established a mechanic's lien against the building, and, without finding that he has established a mechanic's lien against the lots of ground, it then proceeds to declare that such lien is prior to that of the defendants, O'Reilly and Howard, as to the lots also. In its grammatical sense it does no more than declare that a lien established against the building is prior to a mortgage in respect of the ground; which is nonsense, especially since, under our law, a lien may be established against a building only, without being established against the ground. The jury probably intended, under the instructions of the court, to declare that the lien had been established both against the building and the ground, and that, in respect of the ground, it was prior to the mortgage of O'Reilly and Howard. It was evidently deemed unnecessary to declare whether such a priority existed in respect of the building, because the law establishes such a...