Wiles-Chipman Lumber Co. v. Pieper
| Decision Date | 07 December 1943 |
| Docket Number | No. 26371.,26371. |
| Citation | 176 S.W.2d 50 |
| Parties | WILES-CHIPMAN LUMBER CO. v. PIEPER et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; E. McD. Stevens, Judge.
"Not to be reported in State Reports."
Action at law by Wiles-Chipman Lumber Company against William Pieper, doing business as Pieper Contracting Company, and Edouard Keller and Elise Keller, his wife, for reasonable value of materials furnished and for the enforcement of a materialman's lien on certain property. After death of the defendants Edouard Keller and Elise Keller, Walter R. Keller, Olga M. Costello, Alma G. Keller, and Walter R. Keller, executor of the estate of Edouard Keller, deceased, were substituted as defendants. From a judgment denying a materialman's lien, the plaintiff appeals.
Affirmed.
Walter Lamber and Oliver F. Erbs, both of St. Louis, for appellant.
A. E. L. Gardner, of Clayton, and Keil & Keil, of St. Louis, for respondent.
This is a suit at law seeking a judgment for the reasonable value of materials furnished and for the enforcement of a materialman's lien on property which was owned at the time the materials were furnished, and at the time the suit was filed, to-wit, December 24, 1924, by Edouard Keller and Elise Keller, his wife, an estate by the entirety. The parties to the original proceedings were Wiles-Chipman Lumber Company, a corporation, as plaintiff, and William Pieper, doing business as Pieper Contracting Company, who was the original contractor, and Edouard Keller and Elise Keller, his wife, owners of the land or lot, as defendants. Process was duly issued for all of the defendants, and served on defendants Keller, defendant Pieper entering his appearance. On December 4, 1925, defendants Keller filed separate answer, and on December 7, 1925, defendant Pieper filed separate answer. Both answers were a general denial of plaintiff's petition.
The court records show that the case was continued or re-set thirty-nine times beginning with July 20, 1925, and up to January 18, 1937, when it was re-set for Monday March 15, 1937. Six of these record entries recite "Continued by consent," the other thirty-three entries merely show "Continued to next term," or "Continued," or "Re-set," without stating at whose instance the postponement was made.
Elise Keller died December 9, 1926, and Edouard Keller died January 18, 1933. On March 15, 1937, the records show that the death of the defendants Keller was suggested, and the cause continued. On April 14, 1937, Walter R. Keller, executor of the estate of Edouard Keller, deceased, and Dorothea C. Bieth, Olga M. Costello, Walter R. Keller, Alma G. Keller and Edward Keller, heirs of Edouard Keller, deceased, were made parties defendant and scire facias ordered returnable to the May term, 1937, ordering and directing said defendants to show cause on or before the 4th day of said May term why the cause should not stand revived in their names.
Whatever became of Edward Keller, who was named as one of the heirs of Edouard Keller, the record does not disclose. It should also be noted that although the proceedings to revive were against Walter R. Keller, executor of the estate of Edouard Keller, deceased, as well as against the heirs, Walter R. Keller was not at that time (April 14, 1937), nor has he since been executor of the estate of Edouard Keller, deceased; he had been duly appointed as executor of that estate on February 3, 1933, and had completed the administration and made final settlement and was finally discharged on November 15, 1935.
On June 14, 1937, the death of plaintiff's attorney was suggested and leave granted to Walter Lambert and Newell S. Ferry to enter their appearance as attorneys for plaintiff, and the cause was again continued.
The next record entry is that on August 4, 1937, alias writ of scire facias to revive suit was duly issued returnable to September term, 1937, for the executor and heirs of Edouard Keller, deceased.
On September 22, 1937, returns were filed by Walter R. Keller, executor of the estate of Edouard Keller, deceased, and Walter R. Keller, Olga M. Costello, Alma G. Keller and Dorothea Bieth, and thereafter the cause was continued seven times and up to January 5, 1940, on which date the aforementioned returns were withdrawn and a motion filed by Walter R. Keller, Olga M. Costello, Alma G. Keller, Dorothea Bieth and Walter R. Keller, executor, to dismiss the cause because of plaintiff's failure to prosecute the same to final judgment without unnecessary delay as required by Section 3172, Revised Statutes of Missouri, 1929. Thereafter, on March 18, 1940, the cause was continued.
On May 6, 1940, the motion to dismiss was sustained, and on May 10, 1940, plaintiff filed motion for rehearing or new trial, alleging among other reasons,
On September 16, 1940, the court made an order as follows: "Order of May 6, set aside and for naught held and cause ordered abated and dismissed as to Walter R. Keller, Olga M. Costello, Alma G. Keller, Dorothea Bieth and Walter R. Keller, Executor of the Estate of Edouard Keller, Deceased."
On September 20, 1940, the court entered the following order:
Plaintiff's motion for new trial from this order was overruled, and plaintiff appealed to this court. The appeal was dismissed by this court because prematurely taken, and not from a final judgment.
Thereafter, on December 10, 1942, the cause was heard in the circuit court, and the court thereafter entered a judgment to the effect that the motion to dismiss by defendants Keller had been sustained on September 20, 1940, as to those defendants, and the cause ordered abated and dismissed as to them, and further found that defendant William Pieper was indebted to plaintiff in the sum of $310.81 together with interest thereon since the first day of June, 1924, amounting to $345, making a total of $655.81; and further that the motion of defendants Keller having been heretofore sustained, the plaintiff is denied a mechanic's lien on the property described in the petition. From this judgment an appeal by plaintiff has followed to this court.
Appellant now complains that the question of whether it had prosecuted the case without unnecessary delay should have been pleaded by answer and tried at the time the case was tried instead of being raised by motion. The motion to dismiss was filed over fourteen years after the answers had been filed and the issues fully made up. For over fourteen years, the case was not prosecuted by plaintiff "without unnecessary delay", as was required by what has now become Section 3562, R.S.1939, Mo.R.S.A. Not only so, but when defendants Keller did file a motion to dismiss on January 5, 1940, plaintiff did not question that procedure but attempted to meet the issue and contested the motion, and when ruled...
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