Opinion
Opinion delivered May 10, 1950.
1. — Mechanics' Liens. The statute providing that after institution of equitable mechanic's lien suit, no separate suit shall be brought upon any mechanic's lien or claim against said property, does not preclude lienors who were not original parties to equitable mechanic's lien suit as defendants or cross-plaintiffs, and who are otherwise qualified, from entering the equitable mechanic's lien suit on proper application.
2. — Mechanics' Liens. Plaintiffs in mechanic's lien law cases, if they were not already named as plaintiffs in the equitable mechanic's lien suit, had duty to protect themselves in equitable mechanic's lien suit, and filing of equitable mechanic's lien suit rendered even a previously filed suit at law a nullity, and judge could not consolidate mechanic's lien suits at law with equitable mechanic's suit, no matter when equitable mechanic's lien suit was filed, if it was timely filed.
WRIT OF PROHIBITION MADE PERMANENT.
Stephen Barton, Thomas L. Arnold and Oliver F. Erbs, for relators.
Prohibition is that process by which a superior court prevents an inferior court from exercising jurisdiction with which it has not been vested by law, or to restrain inferior courts or public officers when they theaten to act or are acting without or in excess of jurisdiction, there being no other remedy available. State ex rel. Cummings, et al. v. Witthaus, 219 S.W.2d 383; State ex rel. Iannicola v. Flynn 196 S.W.2d 438; State ex rel. McGee v. Owen 121 S.W.2d 765; State ex rel. U.S.F. G. Co. v. Harty 208 S.W. 835; State ex rel. McCaffery v. Aloe 152 Mo. 466; State ex rel. v. Beals 55 S.W.2d 1005, l.c. 1007; State ex rel. v. Elkins 130 Mo. 90; State ex rel. v. Wurdeman 232 S.W. 1002; State ex rel. Barlow v. Holtcamp 14 S.W.2d 647; State ex rel. Smith v. Williams 275 S.W. 534. II. Respondent in the case at bar is about to order the suit at law below to trial, which act is not justified by the record and which Respondent has no rightful judicial power to do, in view of the timely filing of Motion to Dismiss the petition of plaintiff in the suit at law below, and the pleading and proving of the filing of the equitable mechanic's lien suit before filing and institution of the suit at law. State ex rel. Allen v. Buckner 226 Mo. App. 807, 47 S.W.2d 256; State ex rel. v. McQuillin 46 Mo. 517, 532; State ex rel. v. Hort 210 Mo. 512, 525; State ex rel. v. Kimmel k83 S.W. 651; State ex rel. v. Latshaw 291 Mo. 592, 237 S.W. 770. III. Suit No. 7517 is an equitable mechanic's lien action, and it is exclusive of all other remedies, and no other, separate mechanic's lien suit may be brought after its institution, as was attempted to be done in said suit at law, before final disposition by the final judgment of the Court therein of the proceeds of property involved in such equitable suit. Such suit so filed is a nullity. The filing of Motion to Consolidate in suit at law was a nullity and did not toll the statute. Secs. 3571, 3573, R.S. Mo. 1939; Benning v. Farmers Bank of Odessa 190 S.W. 983; Richards Brick Co. v. Wright 82 S.W.2d 274; Imse-Schilling v. Kellems et al., 179 S.W.2d 910, 914; Major v. McVey 128 S.W.2d 347, l.c. 351; Chance v. Franke 153 S.W.2d 378. IV. Respondent has no power or authority to hear and try the suit at law below, in view of the previous filing of equitable mechanic's lien suit No. 7517 of said Court, and the filing of the Motion to Dismiss by Relators, and Respondent should be prohibited from trying the suit at law and should be directed to sustain the Motion to Dismiss filed by Relators below after setting aside his ruling thereon of August 29, 1949. Richards Brick Co. v. Wright 82 S.W.2d 274; Imse-Schilling Sash Door Co. v. Kellems, 179 S.W.2d 910, 237 Mo. App. 960. V. Equity suit No. 7517 pending before Respondent is the only case and the exclusive remedy in which the claim of plaintiff in suit at law in said court can be tried, and the Motion to Dismiss filed by Relators should have been sustained by Respondent. In this proceeding, Respondent herein should be directed to set aside his orders of August 29, 1949, to sustain the Motion to Dismiss filed by Relators and to dismiss the Motion to Consolidate. Mansfield Lumber Co. v. Johnson 91 S.W.2d 239; Imse-Schilling Sash Door Co. v. Kellems 179 S.W.2d 910; Lee Boutell Co. v. C.A. Brockett Cement Co., 341 Mo. 95, 106 S.W.2d 451, 456; Manchester Iron Works v. E.L. Wagner Const. Co., 341 Mo. 389, 107 S.W.2d 89. VI. Respondent erred in sustaining Motion to Consolidate suit at law with equity suit and other lawsuits. Only those equitable suits, all brought contemporaneously by the same plaintiff which could have been brought as one equitable suit in so many counts, may be consolidated. Manchester Iron Works v. E.L. Wagner Const. Co., 341 Mo. 389; Imse-Schilling Sash Door Co. v. Kellems 179 S.W.2d 910, l.c. 915.
R. Kip Briney and Joe Welborn, for respondent, R.B. Oliver, III, pro se.
I. The action of the trial court in setting aside the judgment in Case No. 7517 and reinstating same on the docket was proper in view of the irregularity thereof appearing upon the face of the record. Respondent's Return, pages 3, 4 and 5: Section 1267 R.S. Mo. 1939; Woten, et al. v. Friedbert 198 S.W.2d 1; (a) Section 1267 R.S. 310 Mo. 1939, was not repealed by the New Code of Procedure. Poindexter v. Marshall 193 S.W.2d 622. II. Mechanic's Lien suit is commenced when the petition is filed and where independent suits to enforce liens were brought, life of lien is preserved and court may consolidate lien actions with a pending "equitable action" at any time before such action was finally determined even though the actions involved different rights and different parties. 57 C.J. Sec., Page 881, Paragraph 272; Manchester Iron Works v. Wagner Construction Co., 107 S.W.2d 89. (a) After the judgment in No. 7517 was set aside all three cases, No. 7517, No. 7538 and No. 7554, were in exactly the same status as the day they were filed, and could have been consolidated by the plaintiffs, the defendants, or by the court on its own motion. Here the trial court acted on its own motion. Relators' Exhibit No. 6; Section 3571, R.S. Mo. 1939. (b) Relators were parties to all three suits and were personally served. They had an opportunity to ask for consolidation at the proper time required for pleading. Relators, however, made default in No. 7517 and did not appear at all until after the judgment was set aside and order consolidating was made. In Case No. 7538 they waited six and a half months after service, and two months after the judgment in No. 7517, before they appeared. In Case No. 7554 they waited six months after service and two months after the judgment in Case No. 7517, before they appeared. Relators were served more than sixty days before the judgment in Case No. 7517. Therefore, Relators can not complain, take advantage of or attempt to defeat or avoid, a claim of a materialman because of their own laches, lack of diligence, and reliance upon a situation which they themselves helped create. Respondent's Return, pages 3 to 8 inclusive: Fleming-Gilchrist Construction Co. v. McGonigle 89 SW (2) 17. II. The enactment of the so-called equitable lien statute did not change existing rights. It did not create an exclusive remedy. The entire chapter relating to Mechanics' Liens must be construed together and give a liberal construction. 57 Corpus Juris Secundum, Page 872, Paragraph 264, n 54; Chance, et al. v. Franke 153 S.W.2d 378; Lee Boutell Co. v. Brockett Cement Co., 106 S.W.2d 451.
Supplementary:
I. The order of consolidation was in effect the same as ordering the plaintiff in the subsequent suit to be made a party to the prior suit. Manchester Iron Works v. E.L. Wagner Const. Co., 107 S.W.2d 89, 341 Mo. 389. II. The Court had inherent power to consolidate the two cases. Manchester Iron Works v. E.L. Wagner Construction Co., 107 S.W.2d 89, 341 Mo. 389. III. The petition in cause No. 7538 and 7554 (the subsequent suits) was in effect the same as a cross petition in 7517 (the prior suit). Lee Boutell Co., v. C.A. Brockett Cement Co., 106 S.W.2d 451, 341 Mo. 95. IV. The Court, of its own motion, had authority to make plaintiff's in causes No. 7538 and 7554, parties to 7517 and its order of consolidation had that effect. Section 3571, R.S. Mo. 1939. V. The provisions of the Statute providing for enforcement of the mechanic liens in an equitable action are to be liberally construed and are not to be construed as limiting the rights of lienors. Lee Boutell Co., v. C.A. Brockett Cement Co., 106 S.W.2d 451, l.c. 457, 341 Mo. 95; Major v. McVeg 94 S.W.2d 1122; Hanenkamp v. Hagedorn, 110 SW (2) 826; Leach v. Bopp, 12 S.W.2d 512; 223 Mo. App. 254; Carroll Contracting Co. v. Newsome, 210 S.W. 114, l.c. 118, 201, Mo., App. 117. VI. The plaintiffs in cases No. 7538 and 7544, in the Circuit Court, were timely in perfecting their liens and complied with the statute in filing suit on their lien within ninety (90) days after the filing of the liens. Sec. 3562, R.S. Mo. 1939; Gosline v. Thompson 61 Mo. 471; Henry Evers Mfg. Co. v. Grant 284 S.W. 525.
ORIGINAL PROCEEDING IN THIS COURT
These cases were consolidated at the time they were argued in this Court, and they will be treated together by us. In fact, the two cases are identical, in that the judicial authority of Respondent to make a consolidation in his Court of an equitable mechanic's lien case, with two mechanic's lien law cases, is involved. As we are informed that the two cases here involve the same questions of law, they can be treated together, although many interesting side issues might be discussed.
The Respondent is Judge of the Circuit Court of Scott County. The jurisdiction of this Court, in this proceeding, has been invoked by relators, and is admitted by Respondent, and such jurisdiction will be assumed by us.
We will follow the course adopted by the parties in the circuit court and will hereafter refer to the cases by the numbers which they bore in that court. The case called the equitable mechanic's lien case, is No. 7517, and the Mechanic's lien suits at law are No. 7538 and No. 7554.
It is the contention of relators that Respondent only had the power to dismiss the mechanic's lien suits at law, since the equitable mechanic's lien case was filed, and that he could not try the law cases and could not consolidate those cases with the equitable mechanic's lien suit in his court. They contend that the suits at law should not have been filed after such equitable mechanic's lien suit was filed; and that such mechanic's lien suits could not be consolidated with the previously filed equitable mechanic's lien suit, and that the liens sought in such legal mechanic's lien suit cannot now be established against the property described in the equitable mechanic's lien suit.
There is no question that the equity suit was filed before the suits at law were filed. The numbers of the suits in Respondent's Court so indicate, and there is also proof thereof. Relators' position is as follows:
"Suit No. 7517 is an equitable mechanic's lien action, and it is exclusive of all other remedies, and no other, "separate mechanic's lien suit may be brought after its institution, as was attempted to be done in said suit at law, before final disposition by the final judgment of the Court therein of the proceeds of property involved in such equitable suit. Such suit so filed is a nullity. The filing of Motion to Consolidate in suit at law was a nullity and did not toll the statute."
Relators cite Sections 3571 and 3573, R.S. Mo. 1939. Section 3573 deals with the proper parties in mechanic's lien actions. The last sentence of Section 3573, R.S. Mo. 1939, is as follows:
"After the institution of such equitable action no separate suit shall be brought upon any mechanic's lien or claim against said property, or any of it, but the rights of all persons shall be adjusted, adjudicated and enforced in such equitable suit."
Relators first cite and rely upon Benning v. Farmers' Bank of Odessa, 190 S.W. 983. In that case there was an equitable mechanic's lien suit filed. The Kansas City Court of Appeals, Judge Trimble writing, there said:
"It is urged that there is a misjoinder of parties because the facts do not disclose a case permitting a suit under the act of April 3, 1911 (Laws 1911, p. 314). Puhr Schimp have not complained and did not appeal. The appellant bank raised no objection before trial, but made the point in its motion in arrest that:
"`The petition seeks to establish and enforce two separate and independent mechanics' Liens in one action, and is not such a suit as is authorized by law for the enforcement of mechanics' liens.'"
In that case it was held that the law suits to establish mechanics' liens lost their power, upon the filing of an equitable mechanic's lien suit, for Judge Trimble then said:
"`Any and all liens in this article provided for may be adjudicated and determined * * * in one action,' etc.
"The next sentence provides that `such action shall be an equitable action for the purpose of determining the various rights,' etc., of all persons interested. In other words, the Legislature intended to do away with a multiplicity of suits, minimize the costs, and simplify the manner of enforcing mechanics' liens, by providing for the settlement of all controversies in one action. The statute is not limited to any particular situation in which liens may exist, but applies to any and all liens."
That case is not authority for saying that, where an equitable mechanic's lien suit has been filed, nothing can be done to protect lienors, who are not original parties to the equitable mechanic's lien suit, as defendants or cross plaintiffs. They can enter the equitable mechanic's lien suit, on proper application, if otherwise qualified.
Relators next cite Richards Brick Co. v. Wright, 82 S.W.2d 274, by the St. Louis Court of Appeals. That is a very long case and it will not be quoted in full.
In discussing Section 3183, R.S. Mo. 1929, which is the same as Section 3573, R.S. 1939, Bennick, Commissioner, said:
"Section 3183 provides that when such equitable suit is brought, all other suits that may have been theretofore brought on any mechanic's lien claim or demand shall be stayed and not further prosecuted, the parties therein being made parties to such equitable suit; and that after the institution of such equitable suit no separate suit shall be thereafter brought upon any mechanic's lien or "claim against all or any of the property, but the rights of all parties shall be adjudicated and enforced in such one equitable suit."
The same court in Imse-Schilling v. Kellems, et al. 179 S.W.2d 910, l.c. 914, by the same author, reiterated its construction of Section 3183, R.S. Mo. 1929, and applied the language of said Section 3183 to Section 3573, R.S. Mo. 1939.
In Major v. McVey, 128 S.W.2d 347, l.c. 351, cited by relators, 910, l.c. 914, by the same author, reiterated its construction of Section 3572, R.S. 1939) Judge Hostetter, of the St. Louis Court of Appeals, made a distinction between Sections 3182 R.S. 1929, and the following Section 3138, R.S. 1929, where only one mechanic's lien law suit was filed. But the distinction in his mind is very evident, from what he did say.
The last case on this proposition, cited by relators, is Chance v. Franke, 153 S.W.2d 378. That case was by the Supreme Court. While inferentially recognizing the necessity of all lien claimants joining in an equitable mechanic's lien suit previously filed, Commissioner Bohling, speaking for Division Two of that Court, and at l.c. 380, posed the following question:
"Does a lien claimant who timely protects his rights and institutes an independent action lose his statutory rights merely because he fails to timely appear in an equitable action of which he has not been notified by the ordinary process of law or may such a lienor protect his rights by taking steps to consolidate the actions?"
In that case, the lien claimant apparently had taken the proper steps within the required time to protect his statutory legal rights and had not been advised of the pendency of the equitable mechanic's lien law suit. The judgment, under the equitable mechanic's lien suit was not pleaded, and that judgment was held not to be res adjudicata in a mechanic's lien suit at law.
In view of the foregoing cases, and Section 3573, R.S. Mo. 1939, we must hold that, after the equitable mechanic's lien suit was filed, it was the duty of plaintiffs in the mechanic's lien law cases, if they were not already named as plaintiffs in the equitable mechanic's lien suit, to take steps to protect themselves in the equitable mechanic's lien suit, and the filing of such equitable mechanic's lien suit rendered even a previously filed suit at law a nullity. Respondent had no right to consolidate those mechanic's lien suits at law, with the equitable mechanic's lien suit, no matter when such equitable mechanic's lien suit was filed, if it was timely filed.
We cannot read the last part of Section 3573, R.S. Mo. 1939, that "the rights of all persons shall be adjusted, adjudicated and enforced in such equitable suit," (emphasis ours), without coming to the conclusion that Respondent had no power, under Section 3573, R.S. Mo. 1939, either to consolidate the mechanic's lien suits at law with the pending equitable mechanic's lien suit, or to protect the rights of other lien claimants, unless they can yet participate in such equitable mechanic's lien suit.
Respondent has made heroic efforts to protect the lien claims in the mechanic's lien suits at law. If those claimants are not now entitled to participate in the equitable mechanic's lien suit, Respondent's efforts must be held to be unavailing.
It is useless for us to discuss the many cases, cited by Respondent, wherein a distinction is sought to be made between the facts in those cases and the statute quoted above. That statute is clear and, until the Legislature itself changes the statute, both Respondent and this Court are bound thereby.
If Respondent had already rendered a judgment in the equitable mechanic's lien suit, which he should not have rendered, he certainly has the judicial power, on a proper showing, to correct his own alleged mistakes. Whatever was done in the equitable mechanic's lien suit, by such alleged wrongful act, does not affect the power of Respondent to consolidate the lien suits at law, with the equitable mechanic's lien suit, and that question cannot be determined in this case.
Our conclusion is, that Respondent had no power to consolidate the mechanic's lien suits at law with the equitable mechanic's lien suit, and that the writ of prohibition previously issued by this Court should be made permanent.
It is so ordered. Vandeventer, P.J., and McDowell, J., concur.