Opinion
Nos. 28512 and 28513.
May 19, 1953. Rehearing Denied June 18, 1953.
APPEAL FROM THE CIRCUIT COURT, PERRY COUNTY, J. O. SWINK, J.
Stephen Barton, Benton, and Oliver F. Erbs, St. Louis, for appellants.
Briney Welborn, Bloomfield, for respondents.
This is an equitable mechanics' lien action involving two claims. One of these is the claim of C. Fred Baugher for supervision of construction and carpenter work. The other is a claim of Melvin McMackins for rubber tile and like materials used in the building. The trial resulted in a finding and judgment for both the lien claimants, and from this judgment the holder of a deed of trust and the present owners of the property prosecute this appeal.
The record reveals that C. Fred Baugher was asked by his son and daughter-in-law to build a residence for them. He first offered to do this for the sum of $6,000, but they were unable to raise that much money so he undertook the work of supervising the construction and doing carpentry for $1.50 an hour. He did his last work on February 29, 1948, and was paid a total of $1,050 but this left a balance owing to him of $1,040.25. On May 21, 1948, he filed a mechanic's lien for that amount. The court awarded him a judgment with a lien for $1,040.25 with interest. As to the claim of McMackins, the owners came to his place of business and selected and purchased the materials that he supplied and within six months after the last delivery of the materials selected he filed a lien for $231.96. Judgment with a lien for this amount was awarded him.
There appears to be no dispute about the amounts owing on both claims, but it is contended that the liens were not filed within the prescribed time. As to Baugher it is asserted that he was a day laborer within the meaning of the statute and should have filed his lien within sixty days. Section 429.080 RS 1949, V.A.M.S., provides that the lien of an original contractor must be filed within six months after the accrual of the indebtedness and that the lien of a journeyman or day laborer must be filed within sixty days. Baugher testified that his contract of employment was with the owners of the house upon which he asserts his lien, and it has long been established that if the contract to labor or furnish material is with the owner it is an original contract. The lien of Baugher was therefore filed in time as he was an original contractor. Waters v. Gallemore, Mo.App., 41 S.W.2d 870; Ambrose Mfg. Co. v. Gapen, 22 Mo.App. 397; Darlington Lumber Co. v. James T. Smith Building Co., 134 Mo.App. 316, 114 S.W. 77; Hearne v. Chillicothe Brunswick R. Co., 53 Mo. 324.
As the point relates to McMackins' lien, this also must be ruled against the defendants, for the evidence was that McMackins furnished materials at the request of the owners and there is nothing to support the asserted contention that McMackins' contract was with one of the owners who was acting as a general contractor for himself and wife.
Another point raised is that the judgment is faulty in that there was no finding of an indebtedness due. This is in contradiction of the record, for there is a clear finding of indebtedness and the amounts thereof in the decree.
Before passing to the other points raised, it should be stated that these two lienors started their actions as suits at law, within the time prescribed by statute for bringing such suits, but there was pending at the time an equitable action brought by other lienors. The defendants herein moved to dismiss the two actions brought for the reason that Sections 429.290 and 429.300 RS 1949, V.A.M.S., provide that after an equitable lien action is brought it shall be exclusive of all other remedies for the enforcement of mechanics' liens. The trial court overruled the motion to dismiss the two actions at law and ordered them consolidated with the previously filed suit in equity. At this time the defendants sought a writ of prohibition against the trial judge to prohibit him from proceeding with the two mechanics' lien claims which he had ordered consolidated with the action in equity. This suit in prohibition was brought in the Springfield Court of Appeals and upon transfer it was finally decided by the Missouri Supreme Court in State ex rel. Erbs v. Oliver, 361 Mo. 836, 237 S.W.2d 128, 130. It was held that the two lien actions were properly consolidated by the trial court and that it could proceed to determine the rights of the parties.
It is now urged that the trial court erred in overruling appellants' motion to dismiss the suits in that the lienors were restricted to the equity suit which was the only case that could be tried under the statute and that the lienors, although not parties to the equity suit, are precluded from relief because they failed to enter their appearance in that action either as parties plaintiff or defendant. This contention, upon which the appellants chiefly rely, has been ruled upon and in discussing the point and these same lien actions the court said in State ex rel. Erbs v. Oliver, above cited:
"The contentions of relators are that since case No. 7517 is an equitable mechanics' lien action, it is exclusive of all other remedies; that no other separate mechanics' lien suit may be brought after its institution, as was attempted to be done in the suits at law herein; and that any such suit so filed after the commencement of such an equitable action is a nullity, without any effect whatever, and cannot operate to preserve the plaintiff's lien therein claimed or present any claim that can be consolidated with the equitable action."
After thus stating the points raised the court passed to the statutes upon which the relators in that action predicated their application for a prohibition and stated:
"Construing these statutes together as one entire plan and scheme for determining the rights of all parties in property, we think it is a reasonable construction to hold, when a party whose lien appears in the record book of the clerk is not made a party to an equitable action, that his timely filing of a suit to enforce his lien may be considered in effect as a cross bill in the equitable action and that he may thereafter be formally made a party thereto on his application or by the Court of its own motion. * * * Our conclusion is that the Court in this case had authority to order the two lien claimants, who filed petitions numbered 7538 and 7554, made parties to the equitable action and to proceed to determine their rights therein."
Thus it is evident that the points here raised have been finally determined and are not open for our consideration.
It is conceded by the appellants that we are bound by the above opinion, but it is urged that the law as set forth in State ex rel. Erbs v. Oliver has been overturned by the more recent case of State ex rel. Great Lakes Steel Corporation v. Sartorius, Mo. Sup., 249 S.W.2d 853, and that we should therefore transfer the present case to the Supreme Court for a re-examination of the law. In the case of State v. Sartorius the court prohibited the trial of a lien action as a cause separate and apart from an equitable action then pending. Nothing is said in that case which is not in conformity with the announcements in the Erbs case, which is cited with approval. Both cases clearly state the law without conflict and there is no ground of any nature for a transfer of this cause.
For the reasons stated, it is the recommendation of the Commissioner that the judgment be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the Court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, DEW and RUDDY, JJ., concur.