Seaman v. Paddock , 1892 Mo. App. LEXIS 462 ( 1892 )

Gill, J.

Plaintiff Seaman recovered a judgment before a justice of the.peace for the enforcement-of a mechanics’ lien against a certain frame building known as (‘Kensington Rink,” located on certain described real estate in St. Joseph. A transcript of the judgment was filed in the Buchanan circuit court, •and an execution was there issued. Thereupon defendant Paddock filed a motion to quash the execution, ■which was heard and sustained, and plaintiff appealed.

I. As we view this controversy, the question is, ■did the justice who tried the case acquire jurisdiction ■of the parties and subject-matter? If this should be answered in the affirmative, then it was error to quash the execution. But, if no jurisdiction was acquired, then the ruling of the lower court was proper, and its judgment should be affirmed.

Much is said in brief of defendant’s counsel as to ■the alleged insufficiency of the lien paper which was filed by the plaintiff in the circuit clerk’s office, and which must necessarily have been used as evidence in the trial of the case before the justice. As we understand it we have nothing now to do with that instrument. If the parties and the property sought to be charged were legally brought into the justice’s court, then the admission or rejection of the lien paper in proof of the allegations of the plaintiff’s statement ■could only be complained of on appeal, and errors of that nature find no place in this motion to quash the execution. The motion to quash is in no sense a revisory or appellate proceeding. 1 Freeman on Executions [2 Ed.] sec. 73. The same rule would apply here as in matter of the collateral attack of judgments in tax suits, because of the invalidity of the assessment and the like. In such a case it was held that such judgments conclude and cut off all inquiry as to the regularity of the assessments. “Such things are matters of defense in the tax suit, and, if not made in the suit to recover the tax, they are no longer open to inquiry. The judgment establishes the validity of the tax, just as any other judgment establishes the validity of the debt sued on.” Boyd v. Ellis, 107 Mo. 400.

These remarks apply -with equal force as to the objections here made as to the form of the verdict and judgment in the justice’s court. If anything, these were mere errors and irregularities to be corrected on appeal, and they are matters of no concern in this proceeding. 1 Freeman on Executions, sec. 73; Ewing v. Donnelly, 20 Mo. App. 6; Holzhour v. Meer, 59 Mo. 437.

II. We come now to the sufficiency of plaintiff’s statement filed with the justice when the suit was instituted. In Ewing v. Donnelly, supra, the St. Louis Court of Appeals declared that in proceedings before a justice of the peace to enforce mechanics’ liens every jurisdictional fact must affirmatively appear on the face of the complaint; otherwise the justice would fail to acquire jurisdiction. Defendant’s counsel assailed the complaint here on two grounds, first, that it did not disclose that the work was done or materials furnished under a contract with any owner of the real estate, and, second, that the account sued on was not sufficiently itemized, in that there were no dates affixed to the different charges. Neither of these objections is well grounded. It is unquestionably true that before there can be any right to enforce a mechanics’ lien against real estate, or the buildings thereon, there must have "been the doing of work or furnishing materials under and by virtue of a contract with the “owner or proprietor thereof.” Eevised Statutes, 1889, sec. 6705. Now, “owner or proprietor,” as defined by section 6726, is not confined to the holder of the title to the real estate, but includes as well “every person for whose immediate use, enjoyment or benefit any building, erection or improvement shall be made.” It very clearly appears on the face of this statement filed with the justice, that plaintiff’s account was for materials furnished and labor done in pursuance of a contract with defendant, and too that defendant was the owner or proprietor of the building thus constructed. It is wholly immaterial whether he had any other interest in the premises or not. See Kline v. Perry, ante, p. 422.

As to the account sued on, it thus appears.

H. J. Paddock to G. S. Seaman, Dr.

40 1-2 Sq. gravel roofing at $2.65................................$107.30

26 Sq. ready roofing at $3.75..................................... 84.50

$191.80

No dates are set opposite these two items, but in the body of the statement, or complaint, it is alleged “that said building material was furnished, and said labor was done, within six months next before the filing of this suit,” etc.

Now whatever strictness may be required as to the itemizing of the account which accompanies the mechanics’ lien, it cannot be seriously contended that the foregoing is insufficient in a complaint filed with a justice o£ the peace. The complaint in this regard was sufficiently specific to warn the defendant on what matter and on what account he was sued, and to let in proof necessary to establish his claim; and in .our opinion the absence of a specific date opposite each item furnished no just reason for quashing plaintiff’s, execution.

The judgment will be reversed.

All concur.