Walkenhorst v. Coste
| Decision Date | 31 March 1863 |
| Citation | 33 Mo. 401 |
| Parties | FREDERICK WALKENHORST, Respondent, v. FELIX COSTE et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Law Commissioner's Court.
Colman, for appellants.
I. The court below erred in overruling the demurrer filed by the defendants, Coste, Barnet & Weber. The defendants Barnet & Weber were not, nor was either of them necessarily or properly parties to the action. They were not “parties to the contract” on which the action was founded, nor “interested in the matter in controversy and in the property charged with the lien,” or in either. (Acts, 1857, p. 669, § 8.)
The case does not fall within, and cannot be governed by the principle of the case of Ashby v. Winson, 26 Mo. 210.
II. The judgment rendered by the Law Commissioner's Court was unauthorized, and is irregular and illegal.
a. The judgment is not based upon, or authorized by, the pleadings in the action. (Patrick v. Abeles, 27 Mo. 184.)
b. It finds that all of the defendants are indebted to the plaintiff, whereas the petition only charges Foster to be indebted.
R. F. Wingate, for respondent.
This was a suit for the enforcement of a mechanic's lien. The building was owned by Coste; Barnet & Weber were contractors to erect it; Foster was a contractor with them to do the brick work, and the plaintiff, under a contract with Foster, furnished brick, for which the lien was filed. Barnet & Weber were the contractors for the erection of a row of seven buildings owned by different persons, Coste being the owner of one of them. Foster had one contract with Barnet & Weber to do the brick work of the whole seven, and the plaintiff, under one contract with Foster, furnished brick for the whole seven, and, having a balance due him from Foster, divided up his account so as to charge a portion of it against each building, as they were owned by different individuals.
This suit was brought against Foster, Barnet & Weber and Coste, the owner of one of the buildings. Coste, Barnet & Weber demurred to the petition for a misjoinder of parties defendant in making Barnet & Weber parties. The demurrer was overruled. Barnet & Weber stood upon the demurrer. Coste answered over. Foster answered.
There was a trial, and judgment given for the plaintiff. The judgment was general against all the defendants and special against the property.
The defendants asked several instructions, to the effect that plaintiff could not divide up his account so as to charge each building separately with a lien. They were refused. The court gave, on motion of the defendants, this instruction:
“Unless the court...
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...Consult State ex rel. Erbs v. Oliver, 361 Mo. 836, 840, 237 S.W.2d 128, 129-130(1); Brooks v. Blackwell, 76 Mo. 309, 310(2); Walkenhorst v. Coste, 33 Mo. 401, 403(2); Croatian-American Bldg. & Loan Ass'n v. Casper, Mo.App., 54 S.W.2d 773, 775; 57 C.J.S., Mechanics' Liens, Sec. 323, p. 1009.......
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