93 Mo. App. 620 | Mo. Ct. App. | 1902
On the twenty-second day of December, 1897, the plaintiff and one E. J. MacNish as partners agreed with a number of persons at Lathrop, Missouri, for a consideration of $3,150, to erect for them a creamery at said place. The contract was in writing, to which are subscribed the names of the persons who were interested in the said creamery. By the terms of the contract each subscriber bound himself for only so much of the price to be paid to the plaintiff as was set opposite his name, the contract in that respect being several. The defendants herein bound themselves to pay the sum of one hundred dollars. The contract for the erection of the creamery was complied with by the plaintiff and his partner, MacNish; but as a part of the subscribers, to
Personal service of notice of the suit wTas had against the defendants in said suit, but they did not contest the plaintiffs’ right to a judgment, being in default. That part of the judgment pertinent to the inquiry before us is as follows: “It is therefore ordered, adjudged and decreed that plaintiffs have and recover the sum of $814.38, being the principal and interest of the balance due on said contract, with interest at the rate of six per cent per annum from this date and costs of suit, the same to be levied out of the following described real estate, to-wit (describing the property), together with the buildings and improvements thereon located and the appurtenances thereto belonging, and that execution issue therefor.” A special execution was issued on said judgment, as directed therein, and the interests of the said defaulting subscribers sold, but the same was returned wholly unsatisfied, the sale» resulting in proceeds sufficient only to pay the costs incurred in making the sale.
The plaintiff, as assignee of the said partnership of himself and said MacNish, brings this suit against the defendants for the amount of their subscription, and defendants set up said suit to enforce said mechanic’s lien as a bar to plaintiff’s right to recover. The court found for the defendants and plaintiff appealed.
It is true, that had plaintiffs sued to obtain a simple judgment, disconnected with any attempt to enforce their mechanic’s lien, there would have been a misjoinder both of parties and causes of action. But the reason will not hold good if the question is considered with reference to the object of the suit, which was to enforce a mechanic’s lien. While it is true that each defendant was liable only for the amount he subscribed to the enterprise, and his interest in the property was proportionate to the amount of his subscription, yet plaintiff’s lien was indivisible and included the whole property. And such being the case, no judgment could have been rendered against any one of the defendants for the whole amount due from the several subscribers and none could have been rendered against any one of the defendants for any specified amount of wort done or materials furnished by reason of the indivisibility of the lien. But we hold that if the plaintiffs were entitled to a lien, which is not now open to inquiry since a court of competent jurisdiction has held that they were, they were entitled to a personal judgment against each defendant for the amount of his subscription, with the addition that if no sufficient property of such subscriber could be found to •satisfy such judgment and costs of suit then the residue be levied of the property charged with the lien, as is usual in cases to enforce liens. In this way the interest in the property of each defendant could have been subjected to the lien and the purchaser at a sale made under such judgment would get his proportionate interest in the property.
Under the facts of this case it was competent to join delinquent subscribers as defendants in the same suit, for the object was to enforce the plaintiffs’ indivisible lien upon the property; and as this could not have been accomplished by separate suit, it was imperative that they all be joined in one. See section 767, Revised Statutes 1899. Though there was no joint liability, they could be sued jointly, but the judgment should ascertain and declare their liability separately. Walker’s Adm’r v. Deaver, 79 Mo. 664.
As the judgment under consideration is not to be construed by the provisions of said section-4216, but as an ordinary judgment it remains to be seen whether thereby the plaintiff as the assignee is estopped from prosecuting this case. We think he is. It is said by our courts that “the law abhors a multiplicity of actions, and whenever it appears that plaintiff has sued out two writs against the same defendant for the same thing, the second writ shall abate.” Robbins v. Conley, 47 Mo. App. 502. Here the cause of action was the defendant’s indebtedness for which plaintiffs sought a lien under the statute, which.was a mere incident to their right to recover,
It is a general rule that “if a party, having a cause of action which he may litigate and conclude in one suit, divide it, and sue and recover in respect of part of it, this judgment concludes him as to the whole, and he can not, therefore, sue as to the remainder.” Steiglider v. Railroad, 38 Mo. App. 511; West v. Moser, 49 Mo. App. 201; Lumber Co. v. Agr. and Mechanical Society, 59 Mo. App. 24.
Eor the reasons given the cause is affirmed.