Hughes Bros. Paint & Hardware Co. v. Prewitt , 170 Mo. App. 594 ( 1913 )

JOHNSON, J. —

This a mechanic’s lien suit commenced in a justice court in Jackson county against J. P. Prewitt as contractor and defendants William H. Rowland and Lonis N. Rowland as owners of the property sought to he charged with the lien.

Personal judgment against Prewitt was rendered in favor of plaintiff and a lien adjudged against the property. Louis N. Rowland alone appealed to the circuit court. A trial there resulted in a judgment for plaintiff for the foreclosure of the lien. Both of the Rowlands moved for a new trial and when the motion was overruled both appealed to this court. Since William H. Rowland failed to appeal from the judgment rendered in the justice court he had no standing in the circuit court and has none here. He is concluded by the judgment of the justice, as is Prewitt, who also failed to appeal from that judgment. [Fischer v. Anslyn, 30 Mo. App. 316.] Our inquiry, therefore, will be limited to the appeal of Louis N. Rowland.

The two Rowlands owned two contiguous lots in Kansas City on which they erected sepárate buildings exactly alike, under a single contract with one Robinson. Prewitt became a subcontractor under Robinson for painting the houses and plaintiff sold him the paints used in the performance of his contract. Prew-itt failed to pay for the material and plaintiff in due time proceeded to establish a mechanic’s lien. Plaintiff did not know that Robinson was the original contractor and failed to allege that fact in the lien paper, but alleged therein that the paints were furnished under “one entire general contract with J. F. Prewitt, contractor for William H. Rowland and Louis N. Rowland,” and repeated that allegation in the statement filed with the justice on the institution of this suit. Robinson was not made a party defendant and it is the contention of counsel for appellant that the omission of the original contractor from the proceedings constituted a jurisdictional defect which, is fatal to the judgment.

The statute (Sec. 8217, Rev. Stat. 1909) required plaintiff “to file with the clerk of the circuit court . a just and true account of the demand due him . . . and a true description of the property . upon which the lien is intended to apply with the name of the owner or contractor, or- both, if known to the person filing the lien,” etc.

We held in Cahill v. Ely, 55 Mo. App. 102: “The statute does not require the lien paper to state that ‘the contractor’ is the original contractor; it is sufficient if it state the names of the contracting parties with whom plaintiffs agreed to do the work and furnish the materials. [Downey v. Higgs, 41 Mo. App. 215.] While the statute requires the lien paper to give the name of the owner, it nowhere requires that such lien paper state that ‘the contractor’ made a contract with the owner. ’ ’

Under this rule the lien paper filed by plaintiff was sufficient though it failed to state, or- incorrectly stated, the name of the original contractor. The material fact to be shown was the name of the person with whom the claimant contracted and that fact being correctly stated the purpose of the statute was satisfied.

Section 8221, Rev. Stat. 1909', provides that in mechanic’s lien suits “the parties to the contract shall . be made parties.” This requirement is jurisdictional and if plaintiff had failed to meet it, the omission would have been fatal to- the judgment. [Lumber Co. v. Schuler, 49 Mo. App. 90.] But plaintiff complied with this provision by making Prewitt the person with whom it contracted a party defendant. The expression “parties to the contract” has been held to mean the parties to the particular contract which is the subject of the inquiry in the action and as between whom personal judgment may be rendered. [Downey v. Higgs, 41 Mo. App. 215; McLundie v. Mount, 145 Mo. App. 660.]

Section 8233 of the statutes imposes the duty on the original contractor of defending any lien snit prosecuted against the owners and this statute has been construed to mean that the original contractor should be joined as a co-defendant in an action brought by a material man whose contract was with a subcontractor but that such requirement is not jurisdictional and its nonperformance will not be fatal to the judgment. [Horstkotte v. Menier, 50 Mo. 158.]

The justice therefore acquired jurisdiction over the subject-matter and since no objection on the score of a defect of proper parties was made by appellant at any time this nonjurisdictional defect should be regarded as cured by the judgment. This would not be true if we were dealing, as we were in Lumber Co. v. Schuler, supra, with a jurisdictional defect.

, We have considered other points raised by appellant and find they are not well taken. There is no prejudicial error in the record and the judgment is affirmed.

All concur.