Steinmann v. Strimple

• Citation: 29 Mo.App. 478
• Parties: PETER STEINMANN et al., Respondents, v. J. STRIMPLE et al., Appellants.
• Decision Date: 28 February 1888
• Court: Missouri Court of Appeals

29 Mo.App. 478

PETER STEINMANN et al., Respondents, v. J. STRIMPLE et al., Appellants.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

KRUM & JONAS, TAYLOR & POLLARD, for the appellants: The court erred in admitting in evidence the subcontractor's notice, because it failed to state the names of the persons or firm from whom the debt of plaintiffs was due. Rev. Stat sec. 3190. Nor can this requirement be frittered away by loose construction. Ryan v. Kelley, 9 Mo.App. 398. The giving of a proper notice is a jurisdictional fact essential to a recovery by plaintiffs. Hewett v Truitt, 23 Mo.App. 443. The name of the firm specified in the notice is not the one with whom the owner's contract was made. Nor is it idem sonans with it. Webber v. Ebbing, 2 Mo.App. 16; Robinson v. Thomas, 55 Mo. 583-4; State v. Curran, 18 Mo. 320; Slossen v. Brown, 20 Pick. 439; Skelton v. Sackett, 3 S.W. 874. The court erred in admitting in evidence the mechanic's lien. The order of publication was insufficient in law. Revis v. Lamme, 2 Mo. 208; Skelton v. Sackett, 3 S.W. 874; Gardner v State, 4 Ind. 632; Entrikin v. Chambers, 11 Kan. 368. There being no debtor brought before the court by personal service, nor constructively by legal notice, the court should have sustained the demurrer to the evidence. Wibbing v. Powers, 25 Mo. 599; Wescott v. Biddle, 40 Mo. 148.

MILLS & FLITCRAFT, for the respondents: The notice was sufficient. The firm name of the contractors is sufficient. Towner v. Remick, 19 Mo.App. 205; Henry v. Plitt, 84 Mo. 240. Variances between the notice and the petition will be disregarded, unless they are material, and the owner is misled. Henry v. Plitt, 84 Mo. 240. The objection to the notice should be set up in the answer. Clark v. Brown, 22 Mo. 140. The owners were notified in terms which cannot be misunderstood, both of the amount and that the same was primarily due from Strimple & Son. An amendment may be allowed correcting the name of the contractor and inserting a new name. Newman v. Railroad, 19 Mo.App. 100; Mann v. Schroer, 50 Mo. 306; Witte v. Meyer, 11 Wis. 295. The use of initials do not invalidate the proceedings. Getchell v. Moran, 124 Mass. 407. The lien was sufficient. Gorman v. Dierkes, 37 Mo. 576. A variance between the notice and the petition in regard to names of contractors is not material where plaintiff gives his best information. Brown v. Welch, 12 N.Y.S. 582. The publication was sufficient. Horstkotte v. Menier, 50 Mo. 160; Gimbel v. Pignero, 62 Mo. 240; Butler v. Lawson, 72 Mo. 247; Walker v. Deaver, 79 672; Garrett v. Cramer, 14 Mo.App. 404; Harbeck v. Southwell, 18 Wis. 418. It is not necessary to the validity of the judgment that all of the original contractors should be made parties defendant to the suit. Foster v. Wulfing, 20 Mo.App. 85; Fruin v. Furniture Company, 20 Mo.App. 314; Putnam v. Ross, 55 Mo. 118; Hassett v. Rust, 64 Mo. 325.

OPINION

THOMPSON J.

This was an action by a firm of subcontractors to enforce a mechanic's lien. The principal contractors did not appear, and there was a judgment by default as to them. The owners, and the grantee and beneficiary in a deed of trust, appeared and answered by a general denial merely. A trial by jury resulted in a verdict and judgment for the plaintiff, establishing the lien and awarding a special execution against the property in the usual manner. From this judgment the owner alone appeals.

The question which arises upon the record will best be understood by the following brief statement: The evidence shows, without controversy, that the names of the original contractors were Jacob Strimple and Benjamin F. Strimple; that they were copartners, and that their firm name was J. Strimple & Son. The notice of lien which the plaintiffs caused to be served upon the owners of the property, under the statute, described their claim as a claim for materials furnished, and work and labor performed by them under a contract with " Jacob Strimple and Frank Strimple, doing business as J. Strimple & Son." The claim of lien filed with the clerk of the circuit court described the original contractors, under a contract with whom the plaintiffs had done work and furnished the materials for which the lien was claimed, in the same manner as the notice. The contract between the owners of the property and the original contractors described the latter in its body as " Joab Strimple & Son," and it was signed by them simply " J. Strimple & Son." The original petition described them as " J. Strimple and Frank Strimple, copartners as J. Strimple & Son." At the trial, the plaintiffs were permitted to amend their petition in its body so as to insert after the name, J. Strimple, wherever it occurred, the words, " known also as Joab or Jacob Strimple," and by interlining after the words, " Frank Strimple," the words, " known also as B. F. Strimple or Benjamin F. Strimple." The original contractors were not personally served with process, but were brought in by the publication of an order of court in the usual form, describing them, as they were described in the petition, as " J. Strimple and Frank Strimple, copartners as J. Strimple & Son." Uncontradicted evidence showed that the principal contractors carried on business under the firm name of J. Strimple & Son; that the younger Strimple was commonly called Frank Strimple, Frank being probably a contraction of his middle name, and that the elder Strimple was frequently called Jake Strimple. Upon this evidence the following questions arise:

I. That there was a defect of parties, in that the original contractors were necessary parties, and that their names were misdescribed in the order of publication, which was therefore, void. In reply to this it is argued on behalf of the plaintiff that, as the objection was not taken by demurrer or answer, it is waived. This is the general rule in regard to objections for defect of parties. Walker v. Deaver, 79 Mo. 672; Butler v. Lawson, 72 Mo. 247; Reugger v. Lindenburger, 53 Mo. 365; Dunn v. Railroad, 68 Mo. 268; State to use v. Sappington, 68 Mo. 454. The rule is founded in the two provisions of the practice act embodied in Revised Statutes, sections 3515 and 3519. The former recites that " the defendant may demur to the petition, when it shall appear upon the face thereof * * * that there is a defect of parties, plaintiff or defendant." The latter section provides that " when any of the matters enumerated in section 3515 do not appear upon the face of the petition, the objection may be taken by answer. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court over the subject-matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action." We are of opinion that these statutory provisions have no application in cases where the party not proceeded against, or not properly brought before the court, is a necessary party to the rendition of any judgment at all such as the plaintiff sues for. Such is plainly the case in an action to establish a mechanic's lien, where the party between whom and the plaintiff the contract was made is not brought into court. The statute relating to mechanics' liens recites: " In all suits under this article, the parties to the contract shall, and all other persons interested in the matter in controversy, or in the property charged with the lien, may, be made parties, but such as are not made parties shall not be bound by any such proceeding." Rev. Stat., sec. 3180. That this statute is mandatory in so far as it requires the party, under a contract with whom the lien claimant did the work or furnished the materials, to be made a party to the suit, we have no doubt. Under our former mechanics' lien law it is held that the contractor, under a contract with whom the materials were furnished, or the work done, was a necessary party to the proceeding, in order to the validity of the judgment establishing the lien. The radical view taken by the court of this question will be best understood from the following quotation from the opinion by Scott, J.: " The contractor is the only person who can contest the validity of the demand; and, as the proceeding was dismissed as to him, there was no person to defend the claim of the plaintiff. This case is as if a creditor, proceeding by attachment and garnishment, should dismiss his suit against the defendant--the debtor--and afterwards take steps against the garnishee, when there could be no judgment which he could be condemned to satisfy." Wibbing v. Powers, 25 Mo. 599. This decision was reaffirmed in Ashburn v. Ayers, 28 Mo. 77, and in Wescott v. Bridwell, 40 Mo. 146. It is true that these decisions were under the former mechanics' lien law. Our present mechanics' lien law first appeared as a special act, relating to the county of St. Louis only (Sess. Acts, 1857, p. 668), but it was, by the General Statutes of 1865, established as the mechanics' lien law for the whole state. But we are not aware of any difference between the two statutes which would make the principle of the above decisions inapplicable under the present statute. In Steinkamper v. McManus, 26 Mo.App. 52, we said, citing Wibbing v. Powers, s...