Woodling v. Westport Hotel Operating Co.

• Decision Date: 20 December 1932
• Citation: 55 S.W.2d 477,331 Mo. 812
• Parties: Miner D. Woodling, Doing Business as Miner D. Woodling Heating and Ventilating Company, v. Westport Hotel Operating Company, a Corporation, et al., and Louis Heckel and John Heckel, Co-partners, Doing Business as Heckel Brothers, Appellants
• Court: Missouri Supreme Court

55 S.W.2d 477

331 Mo. 812

Miner D. Woodling, Doing Business as Miner D. Woodling Heating and Ventilating Company, v. Westport Hotel Operating Company, a Corporation, et al., and Louis Heckel and John Heckel, Co-partners, Doing Business as Heckel Brothers, Appellants

Supreme Court of Missouri

December 20, 1932

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Transferred to the Kansas City Court of Appeals.

Edward E. Naber for appellants.

(1) The finding of the court that interveners, Heckel Brothers, did not come into the equitable proceedings commenced by Miner D Woodling within the time required by statute is erroneous for the reason they had no notice of the pendency of such equitable proceeding at the time they filed their separate suit to enforce their mechanic's lien, and the judgment of the court denying them a mechanic's lien based on such finding is erroneous and against the law and the evidence. Secs. 7221, 7225, 7232, 7240, 7241, R. S. 1919; Farmers Loan & Trust Co. v. Denver L. & G. Co., 126 F. 51; Central Imp. Co. v. Cambra Co., 201 F. 811, 824; Early v. Smallwood, 302 Mo. 92, 256 S.W. 1058; Depue v. Miller, 23 L. R. A. (N. S.) 779; Baumhoff v. Grueninger, 178 S.W. 102; Angier v Bay State Distilling Co., 178 Mass. 163, 59 N.E. 630; Rohan v. Cook, 156 Wis. 299, 162 N.W. 183; Johnson v. Keeler, 46 Kan. 304, 26 P. 728; Thielman v. Carr, 76 Ill. 585; Boisot on Mechanic's Liens, secs. 525 and 551; 27 Cyc. pp. 346, 347; Russell v. Grant, 122 Mo. 161; Hassall v. Wilcox, 130 U.S. 493. (2) That Sections 7243 and 7247, Chapter 61, Article 3, Revised Statutes 1919, is unconstitutional and in violation of Section 53, Article 4, of the Constitution of the State of Missouri. Secs. 7225, 7243 and 7247, R. S. 1919; Cornet v. St. Louis County, 240 S.W. 107; St. Louis v. Railroad, 278 Mo. 205, 211 S.W. 671; Jones v. Yore, 142 Mo. 38, 45 S.W. 384; State ex rel. Hurwitz v. North, 304 Mo. 607; State v. Jones, 306 Mo. 446; McManis v. Burrows, 280 Mo. 327; Wilcox v. Phillips, 260 Mo. 679; State ex rel. Rowman v. Pollock, 310 Mo. 620, 257 S.W. 625; State ex rel. v. Walker, 301 Mo. 115, 256 S.W. 460. (3) That Section 7247, Chapter 61, Article 3, Revised Statutes 1919, is unconstitutional and in violation of Section 30, Article 2, of the Constitution of the State of Missouri, in that it deprives the interveners, Heckel Brothers, of their property without due process of law. That Sections 7243 and 7247, Chapter 61, Article 3, Revised Statutes 1919, are unconstitutional and in violation of Section 53, Article 4, of the Constitution of the State of Missouri. That Sections 7243 and 7247 of Chapter 61, Article 3, Revised Statutes 1919, are unconstitutional and in violation of Section 1, Article 14, of the Constitution of the United States of America, in that it deprives the interveners, Heckel Brothers, of their property without due process of law.

Morrison, Nugent, Wylder & Berger and Douglas Stripp for respondents.

(1) The alleged constitutional question, upon which the appeal to this court apparently is based, was not timely raised in this case, and, therefore, this cause should be transferred to the Kansas City Court of Appeals for determination. Hohlstein v. St. Louis Roofing Co., 42 S.W.2d 578; Secs. 3172, 3183, 3187, R. S. 1929; Troeger v. Roberts, 284 Mo. 363; American Radiator Co. v. Connor Plumbing & Heating Co., 277 Mo. 548, 211 S.W. 56; Sheets & Day v. Iowa State Ins. Co., 226 Mo. 619; Speer v. Southwest Mo. Railroad Co., 264 Mo. 267. (2) In ruling that appellants did not take timely steps to enforce their lien, the Jackson Circuit Court correctly interpreted and followed the applicable provisions of the Mechanic's Lien Statutes. Secs. 3172, 3183, 3186, R. S. 1929; Badger Lumber Co. v. Robertson, 222 Mo.App. 211, 297 S.W. 99; Sec. 3181, R. S. 1929. Authorities from other jurisdictions are not in point. Angier v. Bay State Distilling Co., 59 N.E. 630; Davis v. Arthur, 170 Mass. 449; Rohn v. Cook, 162 N.W. 183; Thielman v. Carr, 76 Ill. 585; Johnson v. Keeler, 46 Kan. 304, 26 P. 728; Early v. Smallwood, 302 Mo. 92; Russell v. Grant, 122 Mo. 161; Hassall v. Wilcox, 130 U.S. 493. (3) The questioned statutes are constitutional. (a) Sec. 3183, R. S. 1929; Lumber Co. v. Staley, 141 Mo.App. 298; 12 C. J. pp. 1220, 1222; 2 Cooley's Constitutional Limitations (8 Ed.) p. 754; Cornet v. St. Louis County, 240 S.W. 107; St. Louis v. Railroad Co., 278 Mo. 205; State v. Jones, 306 Mo. 446; Wilcox v. Phillips, 206 Mo. 664; Garvey v. Buckner, 308 Mo. 400. (b) Sec. 3187, R. S. 1929. (4) The decree in any event was for the right parties. Carthage Superior Lime Stone Co. v. Central Methodist Church, 156 Mo.App. 671; Gill v. Harris, 224 Mo.App. 717. (5) Regardless of the interpretation of the statutes and the constitutional questions heretofore considered, the Live Steam Sterilizer is not lienable. McCarthy Lumber Co. v. Kinder, 206 Mo.App. 296. (6) Respondents are entitled to receive as to each of the three items for which liens are claimed their proportionate share of the credit of $ 1,644.29 which was applied by appellants upon the furniture and fixtures in which said items are included. Bopp v. Wittich, 88 Mo.App. 129; McCune v. Belt, 45 Mo. 174.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This is an appeal by an intervening mechanic lien claimant from a decree of the Circuit Court of Jackson County in an equitable suit brought by Miner D. Woodling doing business as Miner D. Woodling Heating and Ventilating Company (hereinafter referred to as Woodling) under the provisions of Sections 3180-3187, inclusive, Revised Statutes 1929, to enforce a mechanic's lien claim and to determine and adjudicate the rights and interests of various other mechanic lien claimants and other claimants, in, to and against certain lots in Kansas City and the building erected thereon by defendant Westport Hotel Operating Company a corporation, hereinafter referred to as Hotel Company.

The writer undertakes, with some misgiving, to make an accurate and concise statement of the history of the matter sufficient to an understanding of the questions involved. On or about March 7, 1925, the Hotel Company commenced the construction and erection of a fourteen story hotel building on lots 1, 2 3 and 4, in block "E", Second Resurvey of Reid's Addition in Kansas City. The building, commonly known as the "President Hotel," was completed, furnished and ready for occupancy for hotel purposes on or about February 1, 1926. On May 21, 1926, the appellants, Louis Heckel and John Heckel, co-partners, doing business as Heckel Brothers (hereinafter referred to as Heckel Brothers), within the time required by statute, filed their mechanic lien statement, against the Hotel Company and said lots and the hotel building erected thereon, in the office of the Clerk of the Circuit Court of Jackson County. This statement was for the purchase price, in an aggregate amount of $ 3,743.71, of barber shop furniture, fixtures, equipment and supplies. Though numerous items are listed, the claim of a right to have a lien established and enforced was later abandoned as to all except three items, a mirror case, cabinet and steam sterilizer. On June 11, 1926, Heckel Brothers, within the time required by statute, filed an amended lien statement in the office of the clerk of the circuit court. This statement was the same as that filed on May 21, 1926, but showed a payment of $ 2,000 on the account made by the Hotel Company on May 25, 1926. On the same date, June 11, 1926, Woodling filed an equitable suit in the Circuit Court of Jackson County under our statutes providing for such proceeding. Woodling claimed a lien against the hotel property for materials and labor, asked to have such lien enforced and "that defendants, and all others claiming any mechanic's or other liens, encumbrances, right, title or interest in said real estate and building be required, severally, to submit their claims, rights, titles and liens to this court for determination and adjudication both as to the validity of the same and the extent and priorities thereof;" "that each of said defendants and all other persons having or asserting claims against said real estate and building be restrained and enjoined from bringing or proceeding further in any separate suit against" said property; and "that the various rights, interests, liens and charges of the various defendants and all other claimants in and upon said land and building be adjudged and determined and that said property be sold and the proceeds thereof be marshaled, applied and distributed according to the various legal and equitable rights and priorities of the parties." The following were made defendants in the Woodling equitable suit: the Hotel Company, as owner of the property, the Southwest Wire and Iron Works, a corporation and W. L. Hutchinson Electric Company, a corporation, mechanic lien claimants, Federal Commerce Trust Company, trustee in a deed of trust made by the Hotel Company and Edward D. Ellison trustee in three deeds of trust made by the Hotel Company. The defendants in due course filed answers and each of the mechanic lien claimants, made defendants, filed a cross-bill setting up its lien claim. It will be noted that though the lien claim of Heckel Brothers was "disclosed by the proper public records" (Sec. 3181, R. S. 1929), having been timely filed and an abstract thereof recorded in the office of the clerk of the circuit court on May 21, 1926, in conformity with the statute (Secs. 3161 and 3162, R. S. 1929), they were not made parties to the Woodling suit and were not at any time served with summons therein or any other form of legal notice that such suit had been filed and was pending. On August 19, 1926, and within ninety...