Jerome Twitchell & Co. v. Devens

45 Mo. App. 283 | Mo. Ct. App. | 1891

Ellison, J.

— This action is to enforce a mechanics’ lien against four separate houses situated upon four contiguous lots in Kansas City, as is provided in sections-6705 and 6729, Revised Statutes, 1889. Plaintiff had judgment below enforcing his lien, and defendants appeal.

It is contended that section 6729 only authorizes a. lien upon more than one lot when the lots are contiguous and the buildings are erected under one general contract ; and that the lien paper filed with the clerk, as provided by statute, does not show that the lots were contiguous, or that the buildings were erected under one general contract. The statute referred to is as follows: “ When the improvement consists of two or more buildings united together and situated upon the same lot or contiguous lots, or upon separate buildings upon contiguous lots, and erected under one general contract, it shall not be necessary to file a separate lien upon each building for the work done or materials furnished in the erection of such improvements.” Our conclusion is that this section should be construed with section 6709 of the same chapter. As so construed, it is only necessary for the lien paper to comply with section 6709 which. provides for filing the lien, and upon what conditions, as well as to what shall be made to appear by the paper. Among such provisions are none requiring a statement as to the contiguousness of the lots, nor as to whether there were one or more contracts. The matter necessary to appear in order that a party may avail himself of section 6729, quoted above, is a matter of pleading, and if it be alleged in the petition it is sufficient.

II. We think it was not necessary that plaintiff should allege in his petition, or prove at the trial, that he had commenced his suit within ninety days after filing the lien. Proof of the time of filing the lien should be made, and the record, or the petition itself, being a part of the record, will show its filing ; such filing being the commencement of the suit. Such was the ruling of the St. Louis Court of Appeals in Hayden v. Wulfing, 19 Mo. App. 378, a decision which, on this point has never been questioned.

As to the alleged variance between the lien paper and the petition, as to the ownership of the property, we see nothing fatal to ‘plaintiff’s cause. Together, it plainly appears from them what the respective interests of the defendants were.

Other objections are not deemed sufficient to justify a reversal, and we affirm the judgment.

All concur.