H. Keller & Co. v. Carterville Building & Loan Ass'n

'Smith, P. J. This is an action which was brought before a justice of the peace to enforce a mechanics’ lien. The suit was brought against B. E. Billingslea, the lotowner with whom was joined the above named defendant, on the ground that it claimed some interest in the property which it was sought to subject to the lien. It appears there was a judgment in the justice court for the enforcement of the lien. The lotowner, Billingslea, did not appeal, but the above named defendant did. The. defendant had judgment in the circuit court and the plaintiffs appealed. At the conclusion of the plaintiffs’ evidence, the circuit court, at the instance of the defendant, instructed the jury to return a verdict for the defendant, and this action of the court is assigned for error. •lv!dcfncpe!emises: The judgment of the lower court must stand. The record nowhere discloses what interest the defendant claimed in the property described in the lien paper. Erom the points and authorities presented by the plaintiffs’ brief we may infer that the defendant’s claim consisted of a mortgage, but as to the date of such mortgage, by whom or when executed, or recorded, the record is silent. If the materials mentioned in the lien paper were furnished under a contract which had been entered into with the owner after the latter, had incumbered the property with a mortgage, the lien for the materials was inferior to the mortgage lien; if, however, [467] they were furnished before the property was incumbered by the mortgage then the former lien is superior to the latter. It does not clearly appear what the character of the improvements was, nor whether the materials were furnished for the completion of the original buildings situate on the property, or for repairs thereto. "Whether the lien for the materials was superior or inferior to that of the mortgage would depend upon whether the above fact was the one way or the other. Reed v. Lamberton, 53 Mo. App. 76. The above suggestions are made for the purpose of •showing that the evidence contained in the bill of exceptions did not tend to prove any fact which would authorize the court to give any judgment whatever against the defendant. There was no evidence tending to show that defendant had a lien of any kind against the property, ■ so that there was no case to submit to the jury. The judgment must accordingly be affirmed. All concur.