34 Mo. App. 169 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This action was brought before a justice of the peace, against Benjamin O. Patterson, J. A. Patterson and George N. Truesdale, original contractors, to
“L. Hallock, [Seal]
“David H. Stewart, [Seal]”
When the cause came on for trial, the plaintiffs appeared by counsel, and the defendants, E. V. P. Ritter, Charles H. Schureman, Thomas H. Haggerty and Leander Hallock also appeared by counsel. The petition was read, and the plaintiffs called a witness ; whereupon the defendants by their counsel objected to the introduction of any evidence tending to establish a lien upon the property described in the plaintiff’s petition, for the reason that such petition does not contain such a statement of the account as to entitle plaintiffs to a lien, which objection the court sustained, and the plaintiffs excepted. The following colloquium then took place: —
“The court-. “You may now proceed against Patterson and against Hallock and his surety on the appeal bond.”
Defendants’ counsel-. “ We object to that, as the plaintiffs in their petition do not demand a personal judgment against our clients ; and the court having-sustained our defense as to the lien, the appeal has been successful.”
The court (after examining- the papers): “I hold that an appeal has been taken in behalf of all the defendants, by Leander Hallock, and that if a demand can be established against any of the defendants, the judgment should be for the debt against such defendant and the surety on the appeal bond.”
Mr. Christian (of counsel for the defendants above named): “It was.not the intention of Mr. Hallock to
The court: “ That motion can be made after judgment as well as now.”
The plaintiffs thereupon introduced evidence tending to prove their demand as set forth in their complaint. The plaintiff also offered the mechanic’s lien papers in evidence, which were excluded by the court. The defendants offered no testimony.
Thereupon the court proceeded to render a judgment, which, after setting forth the names of all the parties in the caption, except the defendant Truesdale, ran thus: “Now at this day this cause being called for hearing, come the plaintiffs by attorney, and come the defendants, E. Y. P. Ritter, Charles H. Schureman, Thomas H. Haggerty, Leander Hallock and Alfred S. Ferguson, by their attorneys ; but the defendants, J. A. Patterson and Ben. C. Patterson, though called, failed to appear. Thereupon, jury being waived, the trial of this cause progressed, and, being terminated, is submitted to the court upon the evidence adduced; and the court having weighed and considered the same, and being now fully advised of and concerning the premises, doth find for the defendant J. A. Patterson, and against the plaintiffs. Wherefore it is considered by the court that said defendant J. A. Patterson go hence without day and recover of plaintiff his costs and charges herein and have therefor execution. And the court doth further find for the defendants, E. Y. P. Ritter, Charles H. Schureman, Thomas H. Haggerty, Leander Hallock and Alfred S. Ferguson, as to the mechanic’s lien by plaintiffs claimed. Wherefore it is considered by the court that the said defendants, last named, go hence without day and recover of plaintiffs their costs and charges
A motion for new trial, filed in time, set up, among -other things, that the judgment should have been in favor of Hallock and Stewart; and set up as facts that the return or transcript of the justice was erroneous in that it stated that Hallock appealed for himself and ■co-defendants, when in truth and in fact he appealed only for himself and his ■ co-defendants, who were charged with being the owners of the property sought to be charged with a lien ; that the justice did not make out the appeal bond and affidavit for appeal in accordance with the instructions of Hallock ; that the justice was requested to make out the affidavit and recognizance by Hallock for himself and his co-defendants, Ritter, Schureman and Haggerty, ■ but, in ignorance of the law, made out said papers and return, as filed in the circuit court; and that neither of these defendants nor their counsel were aware that the transcript of the justice and bond recited that Hallock had appealed “for himself and co-defendants,” until plaintiffs’ counsel announced that he claimed, and the court ruled, that plaintiffs were entitled to a judgment on the appeal-bond, because of the recitals therein. Accompanying the motion for a new trial, the defendant Hallock and Stewart, the surety on the appeal bond, filed a motion for a citation upon the justice to amend his return and the papers, in accordance with the facts as said defendants thus claimed them to be. This motion was supported by an affidavit which, when analyzed, shows the
The motions for a new trial, and for a rule on the justice, were overruled and exceptions were saved.
The members of this court are not in accord in their views as to whether, assuming the justice’s return to be correct, the court erred in entering judgment against Hallock and Stewart; and the court therefore desired counsel to present their views in writing upon the question of the propriety of the ruling of the circuit court in refusing the rule upon the justice to amend his-
Nor have we any doubt that the amendment, which was sought to be effected by a rule upon the justice, was an amendment “in matter of form,” within the meaning of section 3580, Revised Statutes.
Upon the facts disclosed by the affidavit, we are of opinion that the circuit court erred in refusing the rule upon the justice. The facts therein stated are not only not met by any counter-affidavits, but are in accord with all the probabilities surrounding the case. The property owners, advised that the lien was unlawful and would not be established against their property in the circuit court, could have no possible interest in prosecuting the appeal on behalf of the contractors,-in assisting them in further contesting a demand which they themselves had not seen fit to contest before the justice, and especially in rendering themselves liable for any judgment which might be rendered against the contractors, by furnishing an appeal bond for them.
The judgment of the circuit court will be reversed and the cause remanded, with directions to that court, if the ■ motion shall be renewed, to proceed under the statute, by rule and attachment, to require the justice to amend his transcript and also the appeal bond in accordance with the facts. It is so ordered.