Gaty, McCune & Glasby v. Brown, 11 Mo. 138

Gaty, McCune & Glasby v. Brown

11 Mo. 138 | Mo. | 1847

Scott, J.,

delivered the opinion of the Court.

The principal question in this case- is, whether a scire facias can issue from the Court of Common Pleas to enforce a mechanic’s lien. If this question defended upon the general law relative to the liens of mechanics, there would scarcely be a doubt of the jurisdiction of that court, as by the law of its organization it has concurrent original jurisdiction in all civil actions at law with the Circuit Court, and as the lien by the general law may be enforced by a suit in the ordinary form. But an act concerning the Revised Statutes, Rev. Code, 699, sec. 22, provides, “that all acts and parts of acts specially applicable to the city or county of St. Louis, and in force at the commencement of the present session of the General Assembly, and not repealed or modified by some act of the present session specially applicable to said county or city, shall be, and the same are hereby continued in force.” The effect of this section is to preserve in force the statute concerning mechanics’ liens in the city and county of St. Louis, enacted in 1843, sess. acts, p. 83. By this act the lien is required to be filed in the office of the clerk of the Circuit Court, and it is expressly enacted, that in all cases where the amount shall exceed $90, the action shall be brought in the Circuit Court of St. Louis county. The argument is, that the court of Common Pleas, having concurrent jurisdiction with the Circuit Court in all civil actions, and a scire facias being a civil action, therefore the jurisdiction exists in the Court of Common Pleas. The act of 1843, relative to liens in St. Louis, is silent as to the mode of procedure to enforce a lien, but leaves that matter to be regulated by the general law. By the general law a lien holder may sue in the ordinary way or he may issue a scire facias. The question does not arise whether if the suit had been brought in ordinary way the *142Common Pleas would have had jurisdiction. The plaintiff had an option of remedies, and as he has chosen one, that should have been pursued in conformity to the principles of law. There is a great incongruity in permitting a scire facias grounded on a paper filed in one court, to issue-out of another court, when the court in which the paper is filed has express authority to issue the writ, and to hear and determine the controversy. It may be that the account filed is not strictly a record, but whether it be or not, it is the foundation of the action and it stands in the place of one. For the purposes of the suit, it has all the properties of & record. There is no authority to issue the writ on a copy of the lien.— There is no necessity nor reason for it, as the clerk entrusted with the original, is expressly empowered to do it Why increase the costs of the litigation by unnecessarily carrying an originalfrom one court to another. If the legislature had intended that the clerk of the court of Common .Pleas should issue the writ, it would certainly have privided soiue means of giving him information of the contents of the lien. The law on the subject of evidence provides for some cases of the kind, hut this is not among them, for the obvious reason that there was no propriety in or necessity for it. If the transcript of a justice’s judgment is filed in the Circuit Court, could a scire facias issue from the Common Pleas to revive the judgment, or could a judgment of the Circuit Court be revived in the Common Pleas ? It is no answer, to say, that these are records. The reason is that these records being the foundation of the action, the suit must he commenced in the court in which they are found. So in the case of the lien, that being the foundation of the action, the suit must be begun in the court in which it is deposited. The véry same reason which, makes the sci. fa. on a judgment a local action, makes the sci. fa. ora a lien local. Ubi eadem ratio, ibi eadem lex.

The judgment will be affirmed,

the other Judges concurring.