Opinion
No. 42217.
February 12, 1951. Rehearing Denied, March 12, 1951.
The facts and holding of the opinion are adequately summarized in the headnote.
PROHIBITION: Mechanics' Liens: Judgments: Invalid Decree Set Aside: Subsequent Mechanics' Lien Actions Properly Consolidated With Equitable Action: Jurisdiction of Circuit Judge. After an equitable mechanics' lien action had been filed and an invalid judgment therein had been set aside, the plaintiffs in two mechanics' lien suits at law which had been filed subsequent to the equitable action filed motions to consolidate these law actions with the equitable action. Respondent trial judge had authority to treat said law actions as though cross bills in the equitable action.
RULE DISCHARGED.
Stephen Barton, Thomas L. Arnold and Oliver F. Erbs for relators.
(1) 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 threaten to act or are acting without or in excess of jurisdiction, there being no other remedy available. State ex rel. Cummings 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; 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. (2) 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; State ex rel. v. Hort, 210 Mo. 512; State ex rel. v. Kimmel, 183 S.W. 651; State ex rel. v. Latshaw, 291 Mo. 592, 237 S.W. 770. (3) 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. 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, 179 S.W.2d 910; Major v. McVey, 128 S.W.2d 347; Chance v. Franke, 153 S.W.2d 378. (4) 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. (5) 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; Manchester Iron Works v. E.L. Wagner Const. Co., 341 Mo. 389, 107 S.W.2d 89. (6) 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.
R. Kip Briney and Joe Welborn for respondent.
(1) 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. (2) 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. (3) 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. (4) The court, of its own motion, had authority to make plaintiffs in causes No. 7538 and 7554, parties to 7517 and its order of consolidation had that effect. Sec. 3571, R.S. 1939. (5) 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, 341 Mo. 95; Major v. McVey, 94 S.W.2d 1122; Hanenkamp v. Hagedorn, 110 S.W.2d 826; Leach v. Bopp. 12 S.W.2d 512, 223 Mo. App. 254; Carroll Contracting Co. v. Newsome, 210 S.W. 114, 201 Mo. App. 117. (6) 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. 1939; Gosline v. Thompson, 61 Mo. 471; Henry Evers Mfg. Co. v. Grant, 284 S.W. 525. (7) The legislature meant by 3753 that no subsequent suit should be prosecuted to its final conclusion. California S.R. Co. v. Southern Pac. R. Co., 4 P. 344, 65 Cal. 394. R.B. Oliver III pro se.
(1) 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. Sec. 1267, R.S. 1939; Wooten v. Friedberg, 198 S.W.2d 1. (2) Section 1267, R.S. 1939, was not repealed by the New Code of Procedure. Poindexter v. Marshall, 193 S.W.2d 622. (3) 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.S., sec. 272, p. 881; Manchester Iron Works v. Wagner Construction Co., 107 S.W.2d 89. (4) 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. Sec. 3571, R.S. 1939. (5) 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. Fleming-Gilchrist Construction Co. v. McGonigle, 89 S.W.2d 17. (6) 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 given a liberal construction. 57 C.J.S., p. 872, sec. 264, n. 54; Chance v. Franke, 153 S.W.2d 378; Lee Boutell Co. v. Brockett Cement Co., 106 S.W.2d 451.
Prohibition to prohibit respondent Judge from proceeding in two mechanics' lien suits at law which he ordered consolidated with a previously filed equitable mechanics' lien action. The preliminary rule in prohibition of the Springfield Court of Appeals was made absolute (State ex rel. Erbs v. Oliver, 230 S.W.2d 799); but on application of respondent we transferred the cause.
Relators were defendants in the mechanics' lien suits at law, and also in the equitable action, except Leona Erbs who later acquired title to the property involved. Originally there were two separate prohibition cases in the Court of Appeals, but they were consolidated. The equitable action, No. 7517 in the Circuit Court, was filed July 27, 1948. At that time, the mechanics' liens, which the two later suits at law sought to enforce, had been filed: one on May 21, 1948 and one on July 1, 1948. Suit on the lien filed in May, No. 7538, was commenced August 19, 1948; and suit on the other, No. 7554, was commenced September 15, 1948. Relators filed motions to dismiss these suits on March 14, 1949, and they were overruled on August 29, 1949; a judgment by default had been taken in the equitable action on January 10, 1949.
However, the judgment entered was set aside on August 29, 1949 as defective on the face of the record because not responsive to the pleadings and not the kind of a judgment that could be entered in such a mechanics' lien action. It was a personal judgment in favor of all of the separate lien claimants jointly against all of the defendants, some of whom were trustees and mortgagees, without ordering a lien on any property. Such a judgment was subject to being set aside on motion of any interested party under the [130] authority of Sec. 1267, R.S. 1939, Mo. Stat. Ann. (Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1; Badger Lumber Co. v. Goodrich, 353 Mo. 769, 184 S.W.2d 435.) Whether Sec. 1267 authorizes such action on the Court's own motion is not raised or involved under the pleadings in this case. Nevertheless, since it was not the kind of a judgment which could have been entered under the pleadings and on the record in this case, it was coram non judice and void. (See Noyes v. Stewart, 361 Mo. 475, 235 S.W.2d 333, and cases cited; see also 31 Am. Jur. 299, Sec. 760; 49 C.J.S. 444. Sec. 230.) When the Court set aside this judgment, the two plaintiffs in the mechanics' lien suits at law filed motions to consolidate these actions, 7538 and 7554, with the equitable suit 7517.
The contentions of relators are that since case No. 7517 is an equitable mechanics' lien action, it is exclusive of all other remedies; that no other separate mechanics' lien suit may be brought after its institution, as was attempted to be done in the suits at law herein; and that any such suit so filed after the commencement of such an equitable action is a nullity, without any effect whatever, and cannot operate to preserve the plaintiff's lien therein claimed or present any claim that can be consolidated with the equitable action. In short, they say that after an equitable action is begun the only recourse of a lien claimant is to file a proper timely pleading in the equitable action. They particularly rely on Richards Brick Co. v. Wright, 231 Mo. App. 946, 82 S.W.2d 274; Mansfield Lbr. Co. v. Johnson, (Mo. App.). 91 S.W.2d 239; and Imse-Schilling Sash Door Co. v. Kellems, (Mo. App.) 179 S.W.2d 910. Respondent cites Manchester Iron Works v. E.L. Wagner Const. Co., 341 Mo. 389, 107 S.W.2d 89; Lee Boutell Co. v. C.A. Brockett Cement Co., 341 Mo. 95, 106 S.W.2d 451; and Chance v. Franke, 348 Mo. 402, 153 S.W.2d 378.
Provisions for an equitable action were adopted in 1911 (Laws 1911, p. 314), and others were added in 1913 (Laws 1913, p. 408); they became Sec's. 3570-3577, R.S. 1939, Mo. R.S.A.; now Sec's. 429.270- 429.340 R.S. 1949. These provisions authorize the determination of all liens and the rights of all persons in any property in one equitable action which may be brought by any lien claimant, owner, lessee or mortgagee of the property. (Sec. 3570.) Any of them may join as plaintiffs and "all persons claiming any lien or encumbrance upon, and all persons having any rights in or against and all owners and lessees of said property to be affected and any of it, all as may be disclosed by the proper public records, shall be made parties to said action;" and those who do not join as plaintiffs "shall be made defendants." (Sec. 3571.) This section further provides that if "any person whose rights are disclosed by the record is omitted as a party, he may thereafter be made party to said action either upon his own application or upon application of any other party to said action or by the court of its own motion." (Our italics.)
Thus it is clear that all persons who have any interest in the property shown by proper public records are necessary parties and it is the duty of the plaintiffs, and of all parties, to bring them in; even the Court has the duty to see they are made parties and may bring them in of its own motion. Sec. 3552 requires the clerk of the circuit court to keep a book containing abstracts of all liens filed showing the name of the person seeking to enforce it, a description of the property charged and the name of the owner. Certainly this is a proper public record within the meaning of Sec. 3571 and all persons whose names are disclosed by it should be made parties when an equitable action is commenced. It is true that Sec. 3562 requires actions on liens to be commenced within ninety days after the lien is filed or the lien ceases to exist. However, Sec. 3577 provides, when an equitable action is commenced, this requirement is fulfilled if within such ninety day period a summons is issued to the lien claimant and he files answer or other proper pleading "at the time required by law on a summons, in such equitable action." It is also fulfilled, whether the lien claimant [131] is made a party or not, by "any answer, or other pleading, or motion, or entry of appearance followed by pleading in due course, filed or made in any such equitable action by any mechanics' lien claimant, within ninety days after the preliminary statement for the lien of such claimant has been filed." Therefore, the plain intent of the equitable mechanics' lien act was that all persons who had filed liens should be made parties to any equitable lien action when it was commenced and be served with summons promptly so that there would be no need for them to begin any suit or do anything to preserve their liens except plead at the proper time in such equitable action.
Sec. 3576 provides that after such equitable action is commenced, it "shall be exclusive of other remedies for the enforcement of mechanic's liens." Sec. 3575 provides, when an equitable action is brought, all other suits on mechanics' lien claims "shall be stayed and no further prosecuted, and the parties in any such other suit shall be made parties to such equitable action." It further provides "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." (Our italics.)
Relators base their contentions upon this latter provision. What relators claim amounts to is that some lien claimants may commence an equitable action omitting as parties other lien claimants, whose claims appear in the lien record book of the circuit clerk, so that no summons will be issued to them within the ninety day period following the filing of their liens, and that these claimants will then lose their liens even if they begin a timely independent suit at law, without any notice of the equitable action. For example, if an equitable action should be commenced on the 89th day after a lien claimant had filed his lien (without making such claimant a party) and the claimant then filed his suit at law on his lien on the 90th day (and not learn of the equitable action until the next day), relators say he would lose his lien. In view of the positive mandatory language of Sec. 3570 that such lien claimants shall be made parties when the suit is commenced, and the provision for the Court to make them parties of its own motion if they are omitted, we do not think this harsh result must be reached. Parties cannot be permitted to thus gain by their own violation of a statutory requirement, especially in equity, whether it was wilfully done or caused by their neglect. Construing these statutes together as one entire plan and scheme for determining the rights of all parties in property, we think it is a reasonable construction to hold, when a party whose lien appears in the record book of the clerk is not made a party to an equitable action that his timely filing of a suit to enforce his lien may be considered in effect as a cross bill in the equitable action and that he may thereafter be formally made a party thereto on his application or by the Court of its own motion.
We permitted this to be done in Manchester Iron Works v. Wagner Const. Co., ( 341 Mo. 389, 107 S.W.2d 89), which presented the same situation that we have here, although this is not fully disclosed by the opinion. There five separate equitable lien actions were brought to enforce liens on five separate apartment buildings on contiguous lots. There lien claimants sought liens on one or more but not all five of the buildings and filed cross petitions in only one of the equitable actions after having previously commenced independent suits on their liens. We ordered these actions consolidated, saying: "Where separate actions are brought, a court of equity has inherent power to consolidate such separate actions in order that the rights of all lien claimants may be adjudicated and enforced in one action as provided in section 3180." (Now 429.270.) In that case, the record, now on file in this Court, shows that these claimants filed their separate independent suits after the equitable action was begun. The equitable actions were begun March 14, 1927; two of the liens, those of Wright and Myers, were also filed on that day and they both [132] filed suits on June 13, 1927; our opinion held these timely because the previous day was Sunday. Their cross petitions in the equity action were not filed until August 16, 1927. The third lien claimant, Modern Title Company, filed its lien on March 22, 1927 and filed an independent suit within 90 days thereafter. It also filed its cross petition in the equitable action on August 16, 1927. On that phase of the case, we said (107 S.W.2d l.c. 95): "Since the suits were brought within the ninety-day period, the life of the liens was preserved thereby, and claimants could thereafter be made parties to the equitable action on motion of any party or by direction of the court at any time before such equitable action was finally determined." The judgment in the consolidated equitable action establishing all three liens was affirmed.
We agree with the rulings in Mansfield Lumber Co. v. Johnson (91 S.W.2d l.c. 242) and Imse-Schilling Sash Door Co. v. Kellems (179 S.W.2d l.c. 915) that, because of the prohibition against any later separate suit in Sec. 3573, no petition filed after an equitable action has been brought can amount to commencing a separate suit, and that no service of process therein can have any force or effect. Furthermore, we would say that all costs so incurred must be assessed against the party inadvertently causing them. However, it has been the policy of our Legislature to construct our mechanics' lien statutes upon broad principles of right and justice and this Court has construed them liberally to carry out their remedial purposes. (Fleming-Gilchrist Const. Co. v. McGonigle, 338 Mo. 56, 89 S.W.2d 15; See also Lee Boutell v. C.A. Brockett Cement Co., 341 Mo. 95, 106 S.W.2d 451.) The liberal purpose of this equitable action is shown by the following provision in Sec. 3571, authorizing even persons whose rights were not shown of record to come in to the case at any time before final disposition of the proceeds of the property, namely: "Any person, lien claimant or other having any rights in, to, against or upon said property and any of it whose rights are not disclosed at the time of bringing said action by the proper record, shall be bound by the proceedings, orders and judgments in said actions, but any such person shall be entitled upon application to the court to be made a party to said action at any time before final disposition by the final judgment of the court therein of the proceeds of said property and shall be entitled according to their respective rights to participate in the proceeds of the sale of such property and any of it, as the same may be thereafter received or then remain under the jurisdiction of the court." Our conclusion is that the Court in this case had authority to order the two lien claimants, who filed petitions numbered 7538 and 7554, made parties to the equitable action and to proceed to determine their rights therein.
The rule in prohibition heretofore ordered is discharged. All concur.