Bombeck v. Devorss

I. Hall, J. The trial court properly dismissed the case as to defendant Devorss, for the third reason set out in Devorss’ motion. This action could not be maintained against Devorss, the owner of the building, without Baker and Moore, [41] with whom plaintiff had his contract, being made parties defendant. Section 3180 of the Revised Statutes provides that “in all suits under this article the parties to the contract shall * * * be made parties * * * By section 3187 of the Revised Statutes it is provided that all such actions shall be brought within ninety days after filing the lien. By filing the petition against Devorss alone the plaintiff did not institute a suit against Devorss and Baker and Moore. The suit against Devorss and Baker and Moore should have been commenced within ninety days after the filing of the lien ; and as' that suit was commenced by the filing of the amended petition it was not commenced in the required time. II. The court properly refused to permit the plaintiff to introduce any evidence against defendants, Baker and Moore. No personal service was had upon them or either of them. Service by publication only was had upon them. Under such circumstances the court had no power to render judgment, against them. Section 3184 of Revised Statutes. The judgment of the circuit court is affirmed. All concur.