Deatherage v. Sheidley, 50 Mo. App. 490

50 Mo. App. 490 | Mo. Ct. App. | 1892

Ellison, J.

— This action was instituted to enforce a mechanics’ lien, and the following is a sufficient statement of the principal facts upon which it is founded:

Defendant Sheidley was the owner of a lot fronting on Main street in Kansas ■ City, upon which there was a • two-story brick building, which was rented by a month to month tenancy to E. W. Hauser. On March 1, 1890, Sheidley and Hauser entered into a lease agreement whereby Sheidley leased the property to Hauser for two years and eleven months at an increased rate of rent, and with the agreement that Hauser was to erect •a one-story building in the rear of the one then standing on the lot, to cost $1,000. The contract provided that the lease should not become operative unless this building was completed in one month, and that Hauser •execute to Sheidley a bond to protect Sheidley from liens by reason of this improvement. A building was ■erected, though not as agreed upon, and, by reason of non-compliance, also, with the other conditions of the lease, it never became operative, thus leaving Hauser a tenant from month to month.

Plaintiff filed his lien on both the building, which was on the lot when the addition was commenced, and also on the addition and the leasehold interest of Hauser in the lot and buildings, the lien statement stating that the lumber was used in the original building and the one-story addition thereto. Suit was brought before a justice of the peace against Brown, the contractor, Hauser, the lessee with whom Brown contracted, and Sheidley, the owner of the property. Judgment was rendered by the justice against Brown and against both the original building and the one-story addition thereto, and the leasehold interest of Hauser therein. Prom this judgment Sheidley alone appealed to the circuit court. In the circuit court judgment was rendered personally against Brown, who had not appealed from the judgment of the justice, the sureties in the appeal bond of Sheidley, and a special judgment against the addition and against “such interest as Hauser had in the property at the time the addition was completed.”

It is insisted that a tenancy or lease interest from month to month is not such an interest as may be subjected to a mechanics’ lien. We are not of such opinion. Section 6708, Revised Statutes, 1889, is broad in its terms, and will cover such a lease interest. It was decided in Squires v. Fithian, 27 Mo. 134, that a mechanics’ lien was not contemplated where the tenancy was one at will. But this case arose under a local statute applicable to St. Louis county, which contemplated leases of not less dignity than an estate for years. Our present statute is not so restricted. That it is far more comprehensive than the local-act referred to, 'can he readily ascertained by a comparison. See, also, Broadwell v. Clark, 39 Mo. 170, and Ombony v. Jones, 19 N. Y. 234.

Bnt defendant urges that a tenant’s interest in a tenancy from month to month cannot be sold, assigned or transferred by him withont the consent of his landlord (section 6368, Revised Statutes, 1889, of the landlord and tenant act); and that snch interest cannot be sold on execution. Holliday v. Achle, 99 Mo. 273. This statute and decision are not applicable. For, since section 6708 of the lien statute provides, as we-have seen, for the enforcement of a lien against such an interest we must hold that in such case a sale of such an interest is sanctioned by the statute. This is clearly so as applied to the facts of this case; for, when this defendant -authorized the erection of this improvement by his tenant, he must be held to have contemplated that the rights incident to mechanics’ liens might attach. We think, therefore, that the judgment against the improvement and Hauser’s interest in the lot, by reason of his tenancy, was proper.

It is next said that the addition is not such an independent structure as could be removed from the premises as authorized by statute, without injury to the original building. The court found to the contrary, and was amply justified in so doing. We do not see how the cases of Ambrose Mfg. Co. v. Gapen, 22 Mo. App. 397, and Dugan v. Scott, 37 Mo. App. 662, have-any bearing on the facts of the case.

II. As was ruled, in Murdock v. Hillyer, 45 Mo. App. 287, there must be an adjudication establishing the debt against the contractor, in order to enforce the lien for such debt. In this case Brown was the contractor to erect the improvement, and a personal judgment was rendered against him in the justice’s court for the sum claimed. He did not appeal, but on the appeal of his codefendant Sheidley the circuit court inadvertently entered judgment against Brown again. As Brown did not appeal this was erroneous, and, while it would not render the judgment void in a collateral proceeding, it is here attacked directly, and must cause a reversal. The adjudication against Brown in the justice’s court was, however, a sufficient foundation, in this respect, for the lien, and it was not necessary to again enter judgment against him; we will, therefore, reverse the judgment that the circuit court may render a judgment omitting Brown. Such judgment, in order to show regularity upon .its face, ought, perhaps, to recite the judgment against Brown in the justice’s court. "Where the defect is a barren technicality, we believe this to be the proper disposition. It would appear to be sanctioned in Holt Co. v. Harmon, 59 Mo. 165.

III. The circuit court entered up judgment, summarily, against the sureties on the appeal bond, and this is claimed to be error. The conditions of the bond are as follows: “Whereas, G-eorge Sheidley has appealed from the judgment of J. T. Clayton, a justice of the peace, in an action between Charles P. Deather-age, plaintiff, and R. H. Brown et al. Now, if on such appeal, the judgment of the justice be affirmed, or, if on trial anew in the circuit court, judgment be given against said appellant, and he shall pay the judgment, or his appeal shall be dismissed, and he shall pay the judgment of the justice, together with costs of appeal, then this recognizance shall be void, otherwise it shall remain in full force.”

The sureties Rave the right to stand on the letter of this 'obligation. Cranor v. Reardon, 39 Mo. App. 306; Bauer v. Cabanne, 105 Mo. 110. Neither of the three conditions upon which liability of the sureties depend has happened. The judgment of the justice was not affirmed, the appeal was not dismissed, and the only remaining question is, was there a judgment rendered against the appellant? We think there was not, and that there could not he in a case of this nature, since the appellant was in no manner liable to the action. He was only interested in the litigation from the fact that it was sought to charge property which he •owned with a lien. The personal liability was on the contractor. The bond should be construed with reference to the nature of the judgment which can be rendered by the circuit court, and that court, as we have seen, cannot render a judgment against this appellant. Whatever embarrassment or difficulty there may be in a case of this sort is that the legislature has made bonds for appeal from ordinary judgments of justices of the peace, where a personal liability exists against appellants, apply to cases on mechanics’ liens where frequently, as in this case, there can be no personal liability. The case of Hunt v. Hopkins, 83 Mo. 13, was .an appeal by a property-owner from a judgment rendered on a special tax bill where there could be no personal liability. The questions there considered are somewhat applicable here, and the conclusions reached, we think, go far towards sustaining what we have said. It is evident that there should be a special appeal bond provided for in mechanics’ lien eases, where those other than the debtor appeal, which would be applicable to the rights and equities of the parties. In this case the judgment rendered by the justice included some of appellant’s property not liable to the lien, and the circuit court refused to include such portion in the judgment. It might be that a property-owner would be willing to concede a lien against certain of his property, but would appeal if other portions were included. In such, cases it -would certainly be unjust to compel him to pay the judgment,' notwithstanding he. succeeds in releasing that portion of his property he contended for.

In addition, then, to the directions given above, the circuit court will set aside the judgment on the appeal bond. In all other respects the cause was properly tried.

Reversed and remanded.

All concur.