Turley v. Barnes
| Decision Date | 11 December 1895 |
| Citation | 33 S.W. 172,131 Mo. 548 |
| Parties | Turley v. Barnes et al.; Drew, Plaintiff in Error |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Transferred to st. louis court of appeals.
Willis H. Clark for plaintiff in error.
(1) Plaintiff in error was not a party to action 87074; the consolidation of that action with action 86102, to which he was a party, was without authority of law, and by the judgment in such consolidated action plaintiff in error is deprived of his property without due process of law, and in violation of his rights under the constitution of the United States of America, and also under the constitution of the state of Missouri. R. S. 1889, sec. 2189; Const. U.S. Amend art. 5; Const. Mo., art. 2, secs. 30 and 4. (2) The court erred in failing to suspend proceedings in the second action (86102) until the first action (87074) should have been tried and determined. Sharkey v. Kiernan, 97 Mo. 102. (3) Upon the facts found by the referee Turley is not entitled to any lien upon Mr. Drew's property. R. S. 1889, secs 6723, 6709; Uthoff v. Gerhard, 42 Mo.App. 256; Kling v. Railroad, 7 Mo.App. 410; Hoffman v. Walton, 36 Mo. 613. (4) The judgment in awarding a lien upon Mr. Drew's property is erroneous and contrary to the evidence and the law. Lingenfelder v. Brewery Co., 103 Mo. 578. (5) The judgment, in awarding costs in favor of Turley and including same in the lien award against Mr. Drew's property, is erroneous and contrary to the law. R. S. 1889, secs. 3318, 2926.
W. B. Homer for defendant in error.
(1) There is no constitutional question raised by this appeal. The plaintiff in error was properly served with due process and appeared at every step of the proceedings. Cooley's Const. Lim. [6 Ed.] p. 427 f. (2) There was no error in making Drew, the plaintiff in error, a party to the justice of the peace suit, and if there were any error in such action he has waived the same by failing to object. All questions as to the proper parties must be raised by demurrer or answer. (3) The court's ruling as to costs was proper. Lumber Co. v. Sanford, 112 N.C. 655. (4) The judgment of the lien upon plaintiff in error's property is in proper form. Bradish v. James, 83 Mo. 313; Brown v. Wright, 25 Mo.App. 54; DeWitt v. Smith, 63 Mo. 263; Holland v. McCarty, 2 Mo.App. 82. (5) The plaintiff in error filed no bill of exceptions, and there is no error made in the record of which he can complain. Jefferson City v. Opel, 67 Mo. 394; McKee v. Calvert, 80 Mo. 348; State v. Griffin, 98 Mo. 674.
It appears from the record that defendants John W. and E. C. Barnes under the firm name of J. W. Barnes & Company contracted with defendant Drew to make some improvements upon a building in the city of St. Louis. Barnes & Company sublet the carpenter's work to plaintiff Turley. Turley claimed to have completed the work and also to have done some extra work at the instance of Barnes & Company. On the other hand Barnes claimed that plaintiff did not complete the work and they completed it afterward.
Barnes sued Turley in a justice court for $ 82.65 for alleged damages for breach of contract. Turley claimed that Barnes & Company owed him $ 502.30 on the contract and for extra work. For this amount he filed a lien account, having given Drew, the owner of the building, due notice. He afterward commenced a suit in the circuit court against Barnes & Company on the account and to enforce a mechanics' lien on the building. Drew was made a party to this suit. Barnes & Company recovered judgment in the justice court for the full amount of their claim and Turley appealed to the circuit court. January 14, 1892, the lien suit was referred to Leonard Wilcox with direction to take an account.
On March 7, 1892, upon motion of Turley in the appeal case, to which Drew was not a party, the court ordered a consolidation of the two actions and directed that both be tried by the same referee. No notice was given Drew of this motion, nor did he consent to the consolidation. The referee heard the two cases together but reported them separately. In the appeal case he found that Turley owed Barnes & Company $ 45.85 for breach of the contract. In the lien case he found that Barnes & Company owed Turley, after deducting the $ 45.85, the sum of $ 24.35.
The reports were confirmed by the court and judgment was rendered against Barnes & Company for $ 24.35 and costs, and a lien was declared on the property of Drew and special execution awarded. Drew brings the case to this court by writ of error, on the constitutional ground that by the proceedings and judgment he is deprived of his property "without due process of law."
No bill of exceptions was filed by plaintiff in error, and while copies of what purport to be motions for new trial and in arrest of judgment, and exceptions to the referee's report, are found in the record, they form no part of it, and errors, if any,...
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