| Mo. Ct. App. | May 4, 1886
delivered the opinion of the court.
This action is brought by the plaintiffs as sub-contractors to enforce a mechanic’s lien against a building: erected for Henry Rodemann, who died pending the action, under a contract between Rodemann and Henry Hussmann, Jr. The petition contains two counts: The
The case was tried by the court without a jury. The court gave, among others, the following declaration of law: “The court finds that part of the materials furnished were delivered before the death of Hussmann, and as to them, finds in plaintiffs’ favor, on first count, for $394.46, and on second count for $41.83, and of lien for said amounts respectively against property described.”
The defendant requested the following declaration of law, which was refused: “ The court declares the law to be that the lien alleged to have been filed by plaintiffs is invalid, unless the court, sitting as a jury, shall find, from the evidence, that the same was filed jwithin four months after the delivery of the last item of the account on which the same is basedj and that such last item was
The office of instructions, in cases tried by the court without a jury, is not to indicate the views of the court as to the facts, but its views as to the law. The first of the above instructions may, however, be regarded asBhowing that the court took the view of the law that the-claim of lien was valid as to so much of the articles as-the plaintiffs could show by evidence were delivered by them to the building, prior to the death of Hussmann, Jr., the principal contractor. This was certainly a very erroneous view. Where, in the account filed with a mechanic’s lien, there is a mingling together of articles for which the law gives a lien, and articles for which it gives no lien, so that they can not be separated upon a mere inspection of the account, the whole is void; since the owner is entitled to know just how much of the account is chargeable upon his property as a lien, so-that he may protect his property by paying the same. This is the principle upon which several cases in the supreme court, and in this court, have been ‘decided. Nelson v. Withrow, 14 Mo. App. 270" court="Mo. Ct. App." date_filed="1883-11-06" href="https://app.midpage.ai/document/nelson-v-withrow-8258748?utm_source=webapp" opinion_id="8258748">14 Mo. App. 270, 277, and cases-cited; Murphy v. Murphy, 21 Mo. App. 680.
A contract to render personal services is necessarily of such a character that if, before its completion, the-party who -has undertaken to render services, dies, the contract is at an end. If a contract to erect a building could, under any circumstances, be completed by the-
But the circuit court, it is perceived, undertook to separate the items which were furnished before the death of Hussmann, Jr., from those which were furnished after his death, and to give the plaintiffs a lien for the value of the former items. This could not be done for still another reason : Hussmann, Jr., died on the twenty-fourth day of November, 1882. The statute (sect. 3176, Eev. Stat.) requires the “sub-contractor’s claim of lien to be filed within four months after the indebtedness shall have accrued.” The indebtedness for which the court gave the plaintiffs a lien, could not have accrued later than the death of Hussmann, Jr., but the claim of lien in each case was filed more than four months after that ■ date. It was, therefore, filed too late, and for this additional reason the plaintiffs have no lien. “ It is essential to the validity of a mechanic’s lien that it should be
It remains to consider whether the judgment of the circuit court can be allowed to stand, in so much as it is a judgment against the estate of Henry Hussmann, Jr., the principal contractor, in the hands of his administrator, who is a party defendant. We are of opinion that it can. After the cause had been heard and submitted to the court, sitting as a jury, and taken under advisement by the court, the defendant, Henry Rodemann, died. His death was suggested ; a scire facias was issued to his administratrix and his heirs to sho w cause why the action should not be revived against them. The administratrix appeared and moved to quash the order to show cause, and the heirs appeared by a guardian ad litem, and filed a pleading containing the following recital: “And for answer to the order to show cause in the above entitled cause, says that he denies each and every allegation of plaintiffs’ petition, and prays judgment to be dismissed hence with his costs.” The court, without setting aside the submission, or without any re-trial of the cause, continued it under advisement for an additional space of time, and then proceeded to render judgment against the administratrix by default, and against the heirs as though there had been a re-submission of the cause by them. The defendants moved in arrest of judgment, on the ground that the judgment had been rendered without a trial, and without any evidence being heard in the cause against the parties who were ordered to be brought in by the scire facias. It thus appears that the judgment was rendered without any trial between those who were parties to the record at the time when it was rendered. This, we think, was an irregularity of which the heirs and
The judgment will be reversed and the cause remanded, with directions to the circuit court to enter judgment in favor of the heirs and administrators of Rodemann, on the issue in respect of the mechanic’s lien, .and to enter a judgment in favor of the plaintiffs, and against Hussmann’s administrator, in the same sum as heretofore. It is so ordered.