Byrd v. Steele

Ellison, J. This action was begun before a justice of the peace to enforce a mechanic’s lien. It was instituted against David A. Steele, the contractor, and Josephine Hartzell, the owner of the building on March 20, 1890. Josephine was served with process. No summons was issued against David A. Steele. The following is the entry made by the justice on his docket, ordering service by publication: “March 20, 1890. Comes now the plaintiff by attorney, and it being made to appear to James Mitchell, a justice of. the peace before whom the above ease is now pending, that the above-named defendant, David A. Steele, has absconded from his last usual place of abode and cannot be found in this county. Now, therefore, in compliance with the order of said justice duly made in the premises and entered on his docket,” etc. Defendant Josephine filed a motion, in the circuit court, to dismiss because of no sufficient service on Steele. The motion was sustained, and plaintiff appeals. The point made to sustain this action of the trial court is that there was no authority in the justice to make an order of publication, without first issuing a summons against the defendant and having a return of non est. Sections 6160 and 6136 of the statutes are relied upon. Section 6160 relating to mechanics’ liens before justices of the peace provides that the process and proceedings in such case shall be, as nearly as practicable, the same as provided by law in other suits before justices. Section 6136 provides that suits may be instituted before justices of the peace, either by voluntary appearance or by process; and process is defined to be either a summons or an attachment against the defendant’s property. Whether these sections make it a prerequisite to an order of publication, that the justice shall first issue a summons, we need not decide, though such we [423] believe to have been the practice. We need not decide it in this case, from the fact that here, conceding that the justice can find the defendant cannot be summoned by other means than a return of a summons non est, yet it does not appear from the entry made by the justice that defendant' could not be summoned. He found that defendant had “ absconded from his last usual place of abode, and cannot be found in this county.” This might all have been true, and yet defendant could have been summoned under section 6148, by the constable leaving a copy of the summons at defendant’s usual place of abode with a member of his family above the age of fifteen years. We shall sustain the action of the trial court in this respect. II. The next complaint is that error was committed in not sustaining plaintiff’s motion to dismiss defendant’s appeal, on account of a failure to give notice of appeal. The notice was served on the attorney who attended to plaintiff’s case before the justice, but who was not his attorney at the time of service of notice. In Ellis v. Kyes, 47 Mo. App. 155, we held such a service good under the statute, as amended in section 6344, Revised Statutes, 1889. The judgment will be affirmed. All concur.