Hill v. Chowning, Scott & Co.

BROADDUS, J. On the twenty-second day of December, 1897, the plaintiff and one E. J. MacNish as partners agreed with a number of persons at Lathrop, Missouri, for a consideration of $3,150, to erect for them a creamery at said place. The contract was in writing, to which are subscribed the names of the persons who were interested in the said creamery. By the terms of the contract each subscriber bound himself for only so much of the price to be paid to the plaintiff as was set opposite his name, the contract in that respect being several. The defendants herein bound themselves to pay the sum of one hundred dollars. The contract for the erection of the creamery was complied with by the plaintiff and his partner, MacNish; but as a part of the subscribers, to [623] the fund failed to pay according to their agreement, the plaintiffs as contractors for the erection of the creamery brought suit to enforce a mechanic’s lien against the interest of those not so paying their subscriptions, amongst which were the defendants. In the suit thus brought, the defendants, with all the other subscribers to said enterprise, were made parties, and it appears that the defendants made default and judgment was rendered by the court in which it was found that there was still due the plaintiffs therein with interest the sum of $814.38, and subjecting the interest of all the defaulting subscribers, including the defendants herein, to plaintiffs’ lien; but no personal judgment was rendered against any of them. Personal service of notice of the suit wTas had against the defendants in said suit, but they did not contest the plaintiffs’ right to a judgment, being in default. That part of the judgment pertinent to the inquiry before us is as follows: “It is therefore ordered, adjudged and decreed that plaintiffs have and recover the sum of $814.38, being the principal and interest of the balance due on said contract, with interest at the rate of six per cent per annum from this date and costs of suit, the same to be levied out of the following described real estate, to-wit (describing the property), together with the buildings and improvements thereon located and the appurtenances thereto belonging, and that execution issue therefor.” A special execution was issued on said judgment, as directed therein, and the interests of the said defaulting subscribers sold, but the same was returned wholly unsatisfied, the sale» resulting in proceeds sufficient only to pay the costs incurred in making the sale. The plaintiff, as assignee of the said partnership of himself and said MacNish, brings this suit against the defendants for the amount of their subscription, and defendants set up said suit to enforce said mechanic’s lien as a bar to plaintiff’s right to recover. The court found for the defendants and plaintiff appealed. [624] The contention of the appellant is that the facts did not show that his claim had been adjudicated in the former suit to establish a mechanic’s lien, as there was no personal judgment rendered therein against the defendants. Among other reasons given, it is asserted that a personal judgment could'not have been rendered in that case for the supposed rgason, we may assume, that the various defendants were not jointly bound as their obligations were several. It is true, that had plaintiffs sued to obtain a simple judgment, disconnected with any attempt to enforce their mechanic’s lien, there would have been a misjoinder both of parties and causes of action. But the reason will not hold good if the question is considered with reference to the object of the suit, which was to enforce a mechanic’s lien. While it is true that each defendant was liable only for the amount he subscribed to the enterprise, and his interest in the property was proportionate to the amount of his subscription, yet plaintiff’s lien was indivisible and included the whole property. And such being the case, no judgment could have been rendered against any one of the defendants for the whole amount due from the several subscribers and none could have been rendered against any one of the defendants for any specified amount of wort done or materials furnished by reason of the indivisibility of the lien. But we hold that if the plaintiffs were entitled to a lien, which is not now open to inquiry since a court of competent jurisdiction has held that they were, they were entitled to a personal judgment against each defendant for the amount of his subscription, with the addition that if no sufficient property of such subscriber could be found to •satisfy such judgment and costs of suit then the residue be levied of the property charged with the lien, as is usual in cases to enforce liens. In this way the interest in the property of each defendant could have been subjected to the lien and the purchaser at a sale made under such judgment would get his proportionate interest in the property. [625] Section 4216, Revised Statutes 1899, has been held by our courts as mandatory. See Farley Bros. v. Cammann, 48 Mo. App. 168; Winfield v. Architectural Co., 68 Mo. App. 194. In the first of these cases, it was held that a judgment to enforce a mechanic’s lien and no personal judgment had against the debtor, who was party to the suit and served with summons, was fatally defective. Section 4216, supra, has reference to cases where the debtor and the owner of the property are not one and the same persons. In the ease under consideration the debtors and the owners of the property are the same persons, therefore, said section as to proceedings like this does not apply, but is governed by the usual regulations of the code of practice as provided by section 4210, Revised Statutes 1899. Under the facts of this case it was competent to join delinquent subscribers as defendants in the same suit, for the object was to enforce the plaintiffs’ indivisible lien upon the property; and as this could not have been accomplished by separate suit, it was imperative that they all be joined in one. See section 767, Revised Statutes 1899. Though there was no joint liability, they could be sued jointly, but the judgment should ascertain and declare their liability separately. Walker’s Adm’r v. Deaver, 79 Mo. 664. As the judgment under consideration is not to be construed by the provisions of said section-4216, but as an ordinary judgment it remains to be seen whether thereby the plaintiff as the assignee is estopped from prosecuting this case. We think he is. It is said by our courts that “the law abhors a multiplicity of actions, and whenever it appears that plaintiff has sued out two writs against the same defendant for the same thing, the second writ shall abate.” Robbins v. Conley, 47 Mo. App. 502. Here the cause of action was the defendant’s indebtedness for which plaintiffs sought a lien under the statute, which.was a mere incident to their right to recover, [626] but instead of taking a personal judgment and one to enforce their lien they took only a judgment to' enforce their lien. We believe that in so doing they waived their right to prosecute another and separate suit for the same demand, as they are seeking to do in this case. Their cause of action was practically one cause of action, and they were not authorized to split it up so as to be able to have two actions against the defendants instead of one. The law is well settled in this respect. Funk v. Funk, 35 Mo. App. 246; Laine v. Francis, 15 Mo. App. 107. It is a general rule that “if a party, having a cause of action which he may litigate and conclude in one suit, divide it, and sue and recover in respect of part of it, this judgment concludes him as to the whole, and he can not, therefore, sue as to the remainder.” Steiglider v. Railroad, 38 Mo. App. 511; West v. Moser, 49 Mo. App. 201; Lumber Co. v. Agr. and Mechanical Society, 59 Mo. App. 24. Eor the reasons given the cause is affirmed. All concur.