Hydraulic Press Brick Co. v. Lane

REYNOLDS, P. J. (after stating the facts as above). It will be noticed that as there were several parties claiming to hold mechanics, or materialmen’s liens against the property, this proceeding is under the provisions of the Act of the General Assembly of our State, approved April 3, 1911 (Laws 1911, p. 314), as it has for its object the marshalling and distribution of the proceeds of the sale of the property among the parties according to their respective legal and equitable rights therein, and is to be treated as an “equitable action for the purpose of determining, establishing and enforcing the various and respective rights of the parties thereto and for the purpose of marshalling, applying and distributing the proceeds of the sale of such property that may be ordered and decreed in said action.” See section 8235a, Act of April 3, 1911, above referred to. A question suggested itself to the court as to whether the judgment entered therein was a final judgment. We have set out the judgment practically in fuli and it will be noticed that it substantially follows the provisions of section 8235a, Laws 1911, p. 314, ordering, however, a sale of each lot separately, and directing the sheriff to report the result of the sale and to hold the proceeds of the sale subject to the order of the court, the court retaining jurisdiction of the cause for that purpose. After submission, we ordered the cause set down for argument on the question of whether there was a final judgment in the case, from which an appeal would lie. That has been argued before us. Our conclusion is that it is a final judgment as sustains an appeal, — 453 — and so counsel for the respective parties claim.' It is said, 3 Corpus Juris., page 445: “If that which may come before the court for further action or direction is necessary for carrying the judgment or decree into effect, or is merely in execution of the judgment or decree, it is final and appealable. Therefore, a reservation in a decree of a right to apply to the court for any order that may be necessary to the due execution of the decree does not destroy its appeal-ability. And a judgment which completely settles the rights of parties is final, although there is an order retaining the cause on the docket for the purpose of executing the judgment, which is discharged by the payment of the amount of the judgment into court.” It is further said in the same work, page 449, that “according to the weight of authority, the proper distinction is that if the decree disposes of all questions within the pleadings, and nothing remains hut to adjust an account between the parties in the execution of the decree, or there is a reference as to a collateral matter only, it is final for the purpose of an appeal; . . .” And it is further said, page 459 (see. 274) of the same work, that in accordance with the principle stated before and “aside from any statutory provision the general rule is that a judgment, order, or decree which adjudicates and settles all the equities and substantial merits of the controversy is final for the purposes of an appeal, although some incidental or dependent matter may still remain for adjustment, or further proceedings may be contemplated and necessary in the execution of the judgment, order or decree.” In line with this, see Hemm v. Juede, 153 Mo. App. 259, 133 S. W. 620; and Miller v. Connor, 177 Mo. App. 630, 160 S. W. 582. We therefore hold that there is a final judgment in this cause from which an appeal lies. The learned counsel for the appellant makes three assignments of error: First, that the court erred in subjecting the deed of trust held by the Laclede Trust Company and its interests to any mechanics’ lien in favor of plaintiff; second, in subjecting the deed of trust — 454 — held by the Laclede Trust Company and- its interests to any mechanics’ lien in favor of the St. Louis Lumber Company; and, third, “if the Laclede Trust Company, to protect its interests, must pay, it should not be required to pay all or to pay for what went into the building on lot 23, in which it was not interested, but only for what went into the two buildings on which it had the deed of trust, and if required to pay all, then there should be provisions and directions as to what could be done for its reimbursement against the interests in lot 23 and the building thereon.” All these will be considered together. The first point made by learned counsel for appellant under these assignments is to the éffect that the only service in this State as to the holder of the first deed of trust on lot 23 and the building on it was by publication and the suit could not be deemed commenced as to such holder until plaintiff had done all it could do to secure and make complete such service by publication, it being argued that this suit was not commenced as to such holder within ninety days after the filing of plaintiff’s alleged mechanics’ lien, and therefore did not bind such holder of the first deed of trust and the interest it held in lot 23 and building thereon, and that such lien failed to bind such holder and the first deed of trust and interest it held in lot 23 and its building being an alleged “blanket lien,” seeking to bind all, it also failed to bind the Laclede Trust Company, under the first deed of trust and the interest it held in lots 22 and 24 and the buildings thereon. It is also urged that there was an unnecessary delay by plaintiff in- prosecution of the suit for mechanics’ lien, which it is claimed, was fatal. We see no merit in either contention. A suit is held to have been commenced in our State by the filing of a petition with the clerk of the proper court. [Revised Statutes 1909, section 1756.] Construing this section, our Supreme Court held in South Missouri Lumber Co. v. Wright, 114 Mo. 326, 21 S. W. 811, that this had always been the law of our State prior to the enactment of the section, namely, that the — 455 — filing of the petitidn was the commencement of the action, and that that section made no practical change in‘the law as it had uniformly been construed. In State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S. W. 473, our Supreme Court said (l. c. 137), construing this same section, that it has always been held that an action is begun in a court of record when the petition is filed, “this, even although summons may not thereafter be issued until the action is barred.” Many cases are cited in support of this. So Riverside Lumber Co. v. Schafer, 251 Mo. 539, 158 S. W. 340, also holds. Learned counsel for the appellant argues that this does not apply to orders of publication. .We find no authority which' sustains any proposition of this kind. But it is said that there was undue delay on the part of the plaintiff, apparently, in proceeding with the case. This action was commenced by the filing of the petition, which occurred October 5, 1914. The cause was returnable to the December term of the court. At that term the order for publication was issued and publication duly made and proof of publication filed. The plaintiff, of course, was a party to the action and had commenced it within ninety days after filing its mechanies’ lien. • The defendant St. Louis Lumber Company, a party to the action named as a lien claimant, filed its lien September 23, 1914, and filed its answer setting up its lien in the case at har December 7, 1914. That was within the ninety days required by law. Learned counsel for appellant seems to contend that the St. Louis Lumber Company should have sued out a new order- of publication. We know of no law requiring this. The publication sued out by the plaintiff was sufficient for the whole case and the. Lumber Company was entitled to the benefit of that. Section 8235e of the Act of April 3, 1911 (Laws .1911, p. 316), provides that the court shall have full power and. jurisdiction to speed such an action and require service of process to be obtained speedily upon all parties therein “at the instance of any party either — 456 — plaintiff or defendant in said action or of its own motion.” We find no application to the conrt by any party, nor did the court enter any order speeding the action, and the examination of the proceedings in the cause, as brought up to us by a supplemental abstract, shows that the cause was proceeded with in due, timely and orderly manner. The appellant itself, on April 9, 1915, was granted fifteen days to plead on its own motion and it did not file the answer upon which it subsequently stood, that being its second amended answer, until April 24, 1915. The cause came on for hearing before the court on June 9, 1915, and was then heard. Counsel for appellant relies on the decision of our Supreme Court in Pitkin v. Flagg, 198 Mo. 646, 97 S. W. 162, as holding, there was a fatal lack of diligence here. That has no application whatever here. In that case the circuit court ordered the plaintiff to bring in .certain parties whose residence was known to plaintiff by a certain term. The plaintiff failing to do that, the court dismissed the cause and the Supreme Court held that was proper. . We see in this no delay which could be charged as unreasonable or with which the plaintiff or the St. Louis Lumber Company are responsible. Beyond controversy the Laclede Trust Company is now the owner of lots 22 and 24. The present owners of lot 23 and of the notes and deeds of trust on it are alleged to be unknown but are brought in by the order of publication. Whatever rights they have have been determined in this cause as subordinate to the lien claims adjudged. The hens were filed on all three of the lots and this suit proceeds against, and its judgment concludes all known and unknown owners of the several notes or deeds of trust and the liens are held to be superior to all other claims. If there are equities between the unknown owners of lot 23 of the incumbrance on it and the Laclede Trust Company, they are not presented before us in such a manner that we can now determine them. — 457 — Discovering no reversible- error in the proceedings and judgment of the circuit court, that judgment is affirmed. Allen and Becker, JJ., concur.