Williams v. Stroub

• Decision Date: 11 March 1902
• Citation: 67 S.W. 875,168 Mo. 346
• Court: Missouri Supreme Court
• Parties: WILLIAMS v. STROUB et al. LONG-BELL LUMBER CO. v. SAME.<SMALL><SUP>1</SUP></SMALL>

67 S.W. 875

168 Mo. 346

WILLIAMS v. STROUB et al.

LONG-BELL LUMBER CO. v. SAME.¹

Supreme Court of Missouri, Division No. 2.

March 11, 1902.

MECHANICS' LIENS — VERIFICATION OF LIEN — FORECLOSURE SUIT — EVIDENCE — ADMISSIBILITY — SUFFICIENCY — APPEAL — HARMLESS ERROR — PRESUMPTION IN SUPPORT OF JUDGMENT.

1. Where a mechanic's lien foreclosure suit is tried to the court, and the original lien, showing file marks, is offered in evidence, and an objection thereto is overruled, there is no merit in the contention that there is no evidence of the lien or of the filing thereof, though the lien is not read in evidence.

2. The fact that the verification of the account and the description of property required by Rev. St. 1889, § 6709, in a mechanic's lien foreclosure suit, though referring to the "preceding and foregoing statement and description," precedes instead of follows the account and description, does not render the verification insufficient.

3. An assignment of error, in a mechanic's lien foreclosure suit, that the statement is not sufficiently itemized, and dates are not sufficiently set out, is too general, and will not be considered on appeal, but the matters complained of must be specifically set out.

4. The reception of immaterial evidence in a mechanic's lien suit tried to the court, on an issue as to the manner of the construction of the building, as to the work as it appeared from an examination made two years after its completion, is not of sufficient importance to authorize a reversal.

5. The order of the introduction of testimony, being in the discretion of the court, error cannot be predicated on the admission on the re-examination of a witness of testimony which should have been introduced on his examination in chief.

6. Where there is sufficient evidence to sustain a judgment, it will not be reversed because the evidence preponderates in favor of the defeated party.

7. Where all the evidence is not set out in the bill of exceptions, its sufficiency to support the verdict will not be considered.

8. Where the rights of a defendant under a counterclaim in a mechanic's lien suit tried to the court are set forth in the declaration of law given by the court, it will be presumed, on appeal, that such rights were considered in rendering judgment.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Actions by John C. Williams against Anna O. Stroub and others, and by the Long-Bell Lumber Company against Anna O. Stroub and others. The actions were consolidated. From a judgment against Anna Stroub, and an order denying a new trial, she appeals. Affirmed.

Evans & Finley, for appellant. W. R. Cowley and Kinley & Kinley, for respondents.

BURGESS, J.

These actions are by different parties to enforce liens against certain storerooms, with rooms above them, — one a mechanic's lien, and the other a material man's lien. They were consolidated by an order of the court. In Williams' suit he claims a balance to be due him of $2,664.13. To this suit the defendant Anna O. Stroub filed a separate answer, in which it is alleged she made a contract with Williams to build the houses in accordance with certain plans and specifications, with certain grades of materials, and, in a specified time, and that he did not do either; that the Long-Bell Lumber Company, by its name of Pacific Coast Lumber Company, had, as security, joined said Williams in a penal bond in the sum of $7,000, conditioned that Williams would perform and carry out the contract made between him and said Anna O. Stroub. The answer further states that the "Long-Bell Lumber Company has filed in the office of the clerk of the circuit court of Jackson county, Missouri, a statement of its claim for material furnished said Williams for the erection of said buildings and improvements on the land of this defendant, for the purpose of establishing a lien upon said buildings and land, for the amount of said materials, said amount being alleged to be fifteen hundred dollars and fifty cents," and said Anna O. Stroub, in said separate answer, prayed the court to order, adjudge, and decree that the said Long-Bell Lumber Company be made a party to this suit, and be ordered to file herein its claim for material furnished to and used in the construction of said building for which it claims said lien upon the premises of this defendant. After the filing of the foregoing separate answer of said Anna O. Stroub, on the 3d day of December, 1896, the Long-Bell Lumber Company, by order of court, was made a party defendant to said suit, and it filed its answer and cross petition, in which it prayed a judgment against Williams and a lien against the real estate in question for $1,500.50, and also, in addition, a general judgment against Williams for the sum of $1,349.92 for money advanced him with which to erect the buildings in question. On January 11, 1897, the Long-Bell Lumber Company brought suit against John C. Williams, Anna O. Stroub, and others, alleged to be interested in said real estate, to enforce its mechanic's lien against the real estate in question for the amount of $1,500.50. To this petition the defendant Anna O. Stroub filed her separate amended answer, alleging that she had made a contract with Williams to erect such buildings in a specified manner, with a certain character of materials and in a fixed time, under a penalty of $3 per day for every day beyond such time that said buildings remained unfinished. Said answer also alleged that plaintiff, the Long-Bell Lumber Company, had joined defendant Williams as his surety in a bond of said defendant Anna O. Stroub in the penal sum of $7,000, conditioned that said Williams would fully perform the conditions of his agreement with said Anna O. Stroub, and then, after alleging Williams' failure to faithfully perform said contract as to manner of building and character of material used, prayed judgment against plaintiff and defen...