28 Mo. 75 | Mo. | 1859
delivered the opinion of the court.
The important question in this case is whether the court had jurisdiction to enforce a mechanic’s lien. The eleventh section of the act concerning mechanics’ liens provides that any person having a lien under or by virtue of this act may bring suit to enforce the same in the circuit court of the county wherein the property on which the lien is attached is situated, without regard to its amount. In the case of Gaty, McCune & Glasby v. Brown, 11 Mo. 138, the terms of the statute conferring jurisdiction on the court of common pleas of St. Louis county were as broad as those employed in defining the jurisdiction of the Kansas court of common pleas, and it was held that the circuit ceurt alone had jurisdiction to enforce the liens of mechanics, as the lien, the foundation of the action, was filed in the circuit court and there was no provision by which it could be transferred to another court. The liens under the act have priority in the order of filing them in the clerk’s office of the circuit court. Where there are many liens on the same building, it would produce great confusion if different courts could enforce their judgments by executions against it. The court in which the liens were not required to be filed could know nothing of them. The sales would be made at places remote from the record of liens, and purchasers might be misled or the property sacrificed by reason of the uncertainty of their existence. The present lien law, unlike those that formely prevailed, is silent as to the manner in which executions against property
The judgment in the case must necessarily be reversed for the error in permitting the plaintiff to dismiss his suit as to the defendant Ayres. This precise point was determined in the case of Wibbing v. Powers, 25 Mo. 599. Ayres was the real debtor. He made the contract for the materials furnished and was the only person who could defend the plaintiff’s suit. It having been dismissed as to him, there was no one to contest the validity of the plaintiff’s demand; so the result, in effect, is as though Bryant’s property had been condemned to satisfy a lien, the existence of which was never established.
There is another point of view in which this question may be considered. The defendant Bryant is not even a resident of Jackson county, in which Kaw township is situated. The Kansas court of common pleas is one of local jurisdiction. Persons residing out of the limits of Kaw township can not be sued in that court unless joined with one who is a resident. "Will, then, the law permit a plaintiff to join a resident
Judgment reversed;