Heimberger v. Harrison

BOND, J. This suit to enforce a mechanic’s lien was begun and tried before a justice, appealed to the circuit court, where plaintiff had judgment establishing the lien claimed, and thence appealed by defendant to this court. The cardinal question in this case is whether the initial statement in the justice’s court was sufficient by averment, or intention ascertainable from averments, to set forth a cause of action for a lien against the property described therein? Eor if it was totally lacking in this respect the subsequent amendment of the statement in the circuit court should not have been allowed. E. S. 1899, sec. 3893, 4077, and 4079; Ewing v. Donnelly, 20 Mo. App. loc. cit. 9; Brennan v. MeNemany, 78 Mo. App. 122; Dowdy v. Wamble, 110 Mo. 280. In determining the express and implied intention manifested in the statement in the justice’s court it must be borne in mind that the question is not whether that statement was sufficient to charge an indebtedness against one or both of the defendants, but did it set forth the statutory essentials to the establishment of a lien against the property of the owner of'the building? Eor the plaintiff is not in any event entitled to a personal judgment against the owner of the property. As to him plaintiff’s right is confined to the creation of a lien against the property by alleging and proving compliance with the statutory prerequisites to the enforcement of such a lien in a justice’s court. The statement filed before the justice in this case is to-wit: “Jack Simpson and James B. Harrison in account with Louis Heimberger, Dr., May the 25th, 1896, to furnishing brick and material and labor performed in building in a house belonging to James B. Harrison, situated on lot 99, in block 14, in James addition to the city of Eolia, in the state [548] of Missouri, under contract with Jack Simpson, (original contractor) : One flue twenty-seven feet in length, at 70 cents per foot..................... $18 90 June 5, 1896, to furnishing lime, sand and labor performed in plastering said building, as per contract, Jack Simpson the original contractor thereon, 265 yards of plastering at 20 cents per yard....... 53 00 Total debits '.................... $71 90 June 22, 1896, credit by cash..............$30 00 Credit by labor of Otto Simpson.......... 2 75 $32 75 $39 15 And on the back of said statement appeared the following indorsement, to wit: “Louis Heimberger v. Jack Simpson and James B. Harrison, account for debt and lien, filed October 15, 1896, before Peter Christie, J. P.” Upon the above statement the justice rendered a general judgment against both defendants for the amount claimed and adjudged a lien against the property of the defendant owner. The latter appealed to the circuit court, where his motion to dismiss the suit for want of jurisdiction in the justice was overruled, and plaintiff was allowed to file an amended statement setting forth a cause of action for a lien against the property. This ruling was error. The jurisdiction of the justice in cases like the present is special. Every essential to its exercise must appear on the face of the proceedings. The above statement neither expressly, nor by intention, manifested therein, alleges any notice to the defendant owner of the lien claimed, nor of. the previous filing of a just and true account in the circuit court. It was for these reasons wholly insufficient to give the justice jurisdiction, as was [549] expressly held by this court in Ewing v. Donnelly, 20 Mo. App. loc. cit. 10. Tbe amendment in tbe circuit court was tbe attempted substitution of a new and totally different cause of action from tbe mere account alleged in tbe statement in tbe justice’s court. It was not therefore permissible under our statutes. Hence tbe circuit court acquired no jurisdiction, and its judgment establishing a lien againpt tbe defendant owner is reversed. All concur.