Clark v. Brown

22 Mo. 140 | Mo. | 1855

Leonard, Judge,

delivered the opinion of the court.

In order to constitute a valid lien in favor of a material man under a contract, not with the owner, but with the contractor, pursuant to the St. Louis mechanics’ lien act of February, 1843, it is essential that the party who desires to acquire the lien should give notice of his intention to the owner within thirty days after the indebtedness accrued, or the .completion of the building or improvements. If, however, the owner or his agent can not be found, a written notice may be placed, as a substitute for the personal notice, upon some conspicuous part of the building, and a copy filed in the proper office with the lien. Of *142course this written notice, which is allowed in case of the party whose duty it is to give notice, must be affixed to the building within the same time prescribed for personal notice. It ié suggested in the present writ of scire facias^ that the plaintiff had notified the defendants of his intention to fix a lien upon the building, but it is not averred or shown that it was given within the required time, or in what manner, whether personally or constructively — whether by delivering the notice to the party, or affixing it upon the building, and filing a copy in the clerk’s office with the claim for the lien. The notice, however, in one form or the other, .within the required time, is manifestly essential to create a valid lien against the building, where the materials are furnished or the work done under a contract with any person other than the owner, and the suggestions of the writ would seem to be insufficient to warrant us in imposing this debt as a lien upon the building.

But the difficulty is that, so far as Brown, the contractor, is concerned, this is a part of the case in which he has no interest, and the owners, the only parties really interested in it, make no objection. It is true, both contractors and owners may be and probably are proper parties to the scire facias — the contractor, because he is interested in the question of indebtedness, being bound to indemnify the owner against this charge upon his property — and the owner, because his property is thereby subjected to the payment of the debt, his interest extending to both debt and lien, as the latter involves the former. It is true that all these parties bring the case here, and join in the assignment of errors ; but the owners do not in' their answer expressly contest the lien on the ground of the want of the thirty days’ notice, nor do they except to any act of the court during the progress of the trial, and they have neither moved for a new trial or in arrest of judgment, and, we presume, do not in fact complain here of the alleged error.

The points, too, made by Brown, that we consider of any weight, are confined exclusively to matters affecting the validity of the lien, and do not touch the extent or validity of the debt; *143and the judgment is a special one against the building only, and not against the property or person of Brown, and can not affect his interest in any particular, that we can see. It would probably conclude him in a subsequent suit by the owners against him for indemnity, as to the validity and extent of the debt, and so far he may unquestionably contest the plaintiff’s demand ; but we see no reason why he should be allowed to go further and call in question things in which, so far as he shows, he has no interest.- The judgment is affirmed.