Truog v. Elbel Const. Co., 23851

• Court: Missouri Court of Appeals
• Writing for the Court: HUNTER
• Citation: Truog v. Elbel Const. Co., 374 S.W.2d 612 (Mo. App. 1963)
• Decision Date: 02 December 1963
• Docket Number: No. 23851,23851
• Parties: Dan TRUOG and Clyde Nichols, Incorporated, Plaintiff, v. ELBEL CONSTRUCTION COMPANY, Defendant, Red Wing Concrete Construction, Incorporated, Defendant-Appellant, Arizona Savings and Loan Association and Ray B. Lucas and Albert B. Colby, Co-Receivers, Respondents.

Page 612

374 S.W.2d 612

Dan TRUOG and Clyde Nichols, Incorporated, Plaintiff, v. ELBEL CONSTRUCTION COMPANY, Defendant, Red Wing Concrete Construction, Incorporated, Defendant-Appellant, Arizona Savings and Loan Association and Ray B. Lucas and Albert B Colby, Co-Receivers, Respondents.

No. 23851.

Kansas City Court of Appeals, Missouri.

Dec. 2, 1963.

Charles C. Shafer, Jr., Kansas City, for appellant.

James P. Tierney, Kansas City, for respondents.

HUNTER, Judge.

This is an appeal from a judgment of the Circuit Court of Jackson County dismissing appellant, Red Wing Concrete Construction, Incorporated, (Red Wing) as a party defendant in a mechanic's lein action for failure to prosecute and assert liens by required timely pleadings.

Because of the complex nature of the case a statement of background is helpful to an understanding of the issues involved. The original party was Dan Truog and Clyde Nichols, Incorporated, plaintiff, who filed mechanic's liens against certain properties being developed by the Elbel Construction Company (Elbel), and then filed this suit in equity to enforce its mechanic's lien as to the property here in question. Eventually the suit included scores of parties, lawyers, thousands of filed liens, petitions, cross petitions, answers, motions and pleadings.

Red Wing on October 16, 1959, filed over 100 liens against Elbel totaling approximately $32,000. However, this appeal involves only lien No. 23717 in an amount of less than $15,000. On that same date Red Wing employed an attorney to prosecute the warious liens. On January 15, 1960, this attorney filed an application asking for an order joining Red Wing as a party defendant in this (and many other) case. On that same day the application was sustained by the trial court and Red. Wing was made a party defendant.

Respondents, Arizona Savings and Loan Association and Ray B. Lucas and Albert B. Colby, co-receivers had foreclosed a deed of trust against certain Elbel properties including the lot in this case. It is the receivers' contention in this (and all other Elbel actions) that its deed of trust had priority over all the mechanic's liens, and that the foreclosure eliminated any right of the lien claimants. As a result of settlements, dismissals, assignments and other dispositions the only remaining parties to the action were the Receivers and Red Wing.

The issue on this appeal is aptly delineated by the contentions of appellant and respondent. Appellant claims its application to be made a party defendant is the timely commencement of an action as required by Section 429.310 RSMo 1959, V.A.M.S., to preserve its lien and that it was not necessary for it to file any other papers or pleadings. Respondent claims the application to be made a party defendant filed by Red Wing did not constitute a pleading or motion within the meaning of Section 429.310 but rather was no more than an entry of appearance not followed by a pleading in due course; that such application to become a party defendant did not commence an action to preserve a lien as required by Section 429.170 RSMo 1959, V.A.M.S.; that Red Wing lost any right it might have had for its failure to file any answer, crosspetition, or other pleading within six months after filing its lien; and that in any event Red Wing failed to prosecute its action to final judgment as required by Section 429.170. ¹

Section 429.170 RSMo 1959, V.A.M.S., provides: 'All actions under sections 429.010 to 429.340 shall be commenced within six months after filing the lien, and prosecuted without unnecessary delay to final judgment; and no lien shall continue to exist by virtue of the provisions of said sections, for more than six months after the lien shall be filed, unless within that time an action shall be instituted thereon, as herein prescribed.' This Section makes it mandatory for a lien claimant to commence an action within six months after filing the lien, and to prosecute same without unnecessary delay to final judgment. Dierks & Sons Lumber Co., v. McSorley, Mo.App., 289 S.W.2d 164.

But when and how is an action 'commenced'? The answer lies in Section 429.310, 'Any answer, or other pleading, or motion, or entry of appearance followed by pleading in due course, filed or made in any such equitable action by any mechanic's lien claimant, within six months after the preliminary statement for the lien of such claimant has been filed * * * shall be deemed a commencement of an action by such mechanic's lien claimant; * * *'

Specifically what Red Wing filed reads: 'APPLICATION FOR ORDER OF THE COURT JOINING RED WING CONCRETE CONSTRUCTION, INCORPORATED AS A PARTY DEFENDANT.

'Comes now the petitioner, Red Wing Concrete Construction, Inc., a Missouri Corporation by it's attorney Rogers E. Hopper and shows the Court that it has filed Mechanic Lien No. 23717 in the office of Circuit Clerk of Jackson County at Kansas City on October 16, 1959: that on October 8, 1959, plaintiff filed it's suit in Equity to foreclose Mechanic Lien on said Lot 7, Block 5, Vineyard Hill East and has failed to join your petitioner.

'Wherefore, your petitioner prays the court to order your petitioner joined as Party Defendant.'

Can the above application for an order of the court to make Red Wing a party defendant reasonably be construed to be an 'answer, or other pleading, or motion, or entry of appearance followed by pleading in due course' as required by Section 429.310 to 'commence' an action within six months after filing the lien? We think not. It is at most merely an application for Red Wing to be made a party defendant in the case. That was the sole purpose for which it was filed as apparent by its context. It fully served that purpose when the trial court acted on it and made Red Wing a party defendant. Red Wing then being a party defendant still had the duty by appropriate pleading as a party defendant to assert those facts necessary to entitle it to a valid lien and to the relief or judgment it seeks. Supreme Court Rule 55.06 V.A.M.R. provides. 'A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief, and (2) a demand for...