*1 con- no proper case is of decision on the merits of Appeals’ of is, that court concern did question actual cern of this court. principles or applicable attaining apply properly result before the matter court. rules of law the Appeals for determination problem before Court applicable the rule above stated was branch of as to which made the determination. That policy question. there substantial reason
question before to determine whether us is meaning the in uncertainty respect doubt and strument. Examination words
Respecting question we observe: this policy, considered in with the seven of the connection paragraph ample concerning cause for their paragraphs, doubt discloses Appeals meaning. The circuit court and Court differ- reached Among the various states involving conclusions. in- ent decisions identically same that contained policies provisions surance diversity opinion. now before these us there is view of which opinion there we are instant substantial in judicially Appeals’ construing for the Court basis policy. questioned concur. quashed.
The writ All Corporation, Appellant, Investment Macklind v. Ferry. (2d)W. S. S. 21. Newell One, July Division *2 Bryan Wilson appellant. Dubail
Dunbar *3 Taylor C. respondent. Seneca enjoin of real estate under a
BRADLEY, the sale C. Action to mechanics’ lien suit which in an special execution issued by plaintiff. securing notes held five involved trust concerned here. On deeds of trust suit also involved appeal this defendant, plaintiff’s bill dismissed and motion followed. appeal since this suggested in motion here It is filed here, forfeited appellant plaintiff, the charter 4619, Revised Statutes January 1, 1936, Section under the State 2049), corpora Stat. see. Along suggestion. dissolved. There is no denial of this
tion was then statutory (in case suggestion motion that the trustees is a with 4622, R. S. dissolution) (under Sec. corporation of appellant entry of 1929) appellants, and their written be substituted here entry appearance were motion appearance was filed. The argued and is sufficient to submitted. taken with the case *4 sustained, statutory trustees as say and that the that the motion appellants in of are as lieu the dissolved set out therein substituted change necessary we do deem corporation. not to style judgment following appears plaintiff’s petition and the
The from judgment at the in mechanics’ lien which was introduced hearing present on the motion to dismiss. has its back style ground in mechanics’ lien A. of which was Louden Contracting Company Realty v. Union & Com Brick Construction an mechanics’ Sec pany et which was lien suit under seq., 3180 et Revised Statutes 1929 Stat. secs. 3180 tions seq., 5008). mechanics’ lien suit the Circuit Court adopted report St. and Louis recommendations of a referee and $38,167.30, aggregating mechanics’ allowed claims based on several A. Brick Contracting lien claims addition to the claim of judgment on special made the lien to 12 and lots in clusive, Heights, city 5732, appointed block Motor block and de Ferry special fendant cause as sell commissioner to satisfy liens. One to defendants property said judgment in that appealed from the Louden ease favor claimants, holders, priority, deeds trust to and perfected was appeal and dismissed. Union but Realty Company real owned the estate mentioned entered into the various contracts for the labor and material and thereon, improvements that Aventinto the which and material furnished, labor prin- the various lien claims are based. The total cipal by by plaintiff of the notes held and five secured deeds $25,500. trust, by publication, Plaintiff was served Louden case Avas and -designated as one of the unknoAvnholders of notes secured property judgment trust on concerned. The that case alleged entered and it NoAmuber case that day January, “on the 1st Realty the charter (the Construction Company contractor in-the various mechanics’' lien lots) claims and owner of the was forfeited the State of Missouri incorporated, under which State it was and that on such its cor date porate rights existence and forfeited were and and canceled the cor pora dissolved,” proper tion “that representatives of said Realty Company & Construction AA7ere substituted before or order of sale said and that said said Union Avasnull and void effect,’’ force and that there is “no on which special enforcing execution can be had said mechanics’ liens and that a judgment by sale or sales under said the defendant herein would be null and void and a cloud the interest plain of this tiff.” by defendant, special sale commissioner in the Louden me-
chanics’' lien August was set for filed his enjoin petition August 6, 1934, to on and service was on had defend- August ant temporary 8th. No restraining order was issued advertised, place, took August 9, 1934, 1934. October defendant filed plaintiff’s motion to dismiss petition injunction, hearing and a was had on the motion on October 12th. The motion T9, 1934, plaintiff’s sustained November was dis- Avas missed. (2) enjoin theory Plaintiff’s the sale is on the that the void, Louden mechanics’ lien is, case is stands pleadings admitted be void. As appears above al-
leged that the Union & Construction Company, corporation, *5 January 1, 1931, judgment dissolved the and the Louden case Avas 21, Avas not rendered until grounds November T933. (somewhat condensed) (1) for dismissal set out the motion are: That sought should have relief in appropriate some proceeding in the ease; (2) Louden that petition the does a not state cause
498 any not ask for relief (3) petition defendant; the does against that filed), was (when motion sale granted time at this be that can thing past. being a then dismissing plaintiff’s petition judgment is not disclosed It judgment merely ground recites it is based. that what , dismissed. second was- sustained the motion motion, grounds, general is have a ground as we stated known to admissions de- demurrer, the well rule as and under that murrer, it stands admitted corporation a at time the rendition as was dissolved words, company that judgment in the Louden
of the (as at pleadings) admitted the time of the existence was not in judgment. rendition partes rem, inter not in RusselL
A mechanics’ lien suit is Brown, 559,1.- Grant, 161, 958; 26 Clark 25 S. W. v. Mo. c. 122 Mo. v. established, “except an in be 564, a mechanic’s cannot judgment against one with whom the con personal some cident made, or material was who himself either the work tract for owner, standing him, or some under or with the owner contractor only relation, work or material actual in a and then contract building ly improvement/’ into construction of or entered Wibbing 51; Powers, 26 Mo. App. v. v. McManus et [Steinkamper 161, 179, Grant, 599; 958; 122 Mo. l. 26 S. W. 25 Russell v. c. Mo. (2d) 68 S. W. App.), et Reese v. Cibulka al. 902.] entity premise corporate Plaintiff’s is that Compaq having been when the dissolved rendered, the Louden there could be no valid against company no that valid account established mechanic’s lien. that rendered which to base a true no corporation valid can be rendered as such after exist. al. v. dissolved et Parker-Wash and has ceased [Cole 220, ington Co.', 749; Cyc. 276 207 Corp., Mo. S. W. 9 Fletcher’s sec. 4240, Ordinarily injunction lie will to restrain a sale 38.] having execution under one interest the real estate 1519, p. 1672; R. S. Mo. Stat. sec. seized. [Sec. Rookery Realty, Loan, Bldg. Johnson, Inv. & Co. 294 v. Mo. 130 ; Jefferson City Bridge Blaser, S. l. c. W. Transit v.Co. kept 318 Mo. S. W. c. l. it must be 781.] mind mechanics’ lien an equitable Louden me statute, seq., chanics’ lien case under the Sections Revised to, supra, plaintiff, Statutes referred party was a .being designated, defendant stated, as one holders of the unknown of notes secured particularly of trust described mechanics’ lien case. When days filed its in three before the ' sought enjoined, to.be in the lien suit was not *6 by report special the awaiting commissioner. final, the but was was served in the Louden case Although present officers) knew, -days, (through at least three by yet it its publication, sale, enough corporate to existence of the date of before the allege to Realty & Construction nonexistence Union course, knew, company, that lien of that among Revised Statutes other not final. Section case was equitable “after institution of such action things, provides that brought any lien claim no mechanics’ or separate suit shall be all any it, rights persons but the shall or property said ” equitable adjusted, adjudicated in suit. and enforced' such be ours.) (Italics equitable clearly requires lien mechanics’ statute that all in
claims the real estate involved be determined one suit. among provides, things, Section Revised Statutes other any party “if during that to said shall die or cease to exist pendency of said action before the or order of sale property, proper therein of then the representatives, said either ad- right, or proper ministrator successor shall be substituted order of the court motion and notice motion without formal According plaintiff’s revivor said action.” to petition, and ad- dismiss, mitted Realty motion to Construction Company died “before the or order sale” present lien had appeared mechanie.’s filing Louden case at the time of suggested Realty the dissolution of the Union proper (see 1929) then the successor Sec. R. S. would procedure might have been substituted. such been have without plaintiff. benefit to
It is asserted defendant’s brief that “at the time the equitable rendered in mechanic’s lien the defendant owner contractor, Union Company, was ’’ good a corporation in standing in Missouri, the State of but there is nothing in the support record to such assertion. Whatever1 the facts may be to existence & Construction Com pany, mechanics’ lien statute made it mandatory that plaintiff seek redress in the wrong mechanics’ ease for whatever might that enjoined. be sought Injunction done to the sale to be strong court, “is the arm the operation benign render its and to useful, and necessity requires it must great be discretion, exercised with and when Rys. Co., it.” v. United Mo. [Johnson l. c. 127 S. W. certainly necessity There was invok for 63.] ing strong arm court It suggested that temporary since no restraining order was is sued and that the sale was had present injunction before the suit came hearing dismiss, on the motion to should this, theory
have entertained the on the there enjoin. nothing1 necessary go question. then into such judgment dismissing be affirmed and it should Ferguson CG., Hyde, so ordered. concur. *7 PER foregoing opinion by Bradley, C., adopted CURIAM: opinion judges concur, Douglas, of the court. All except,
J., voting because a member of the cause sub- mitted. Service Corporation, Appellants,
Missouri et v. The City Stanberry, Municipal al. 108 Corporation, S. W. (2d) 25. One, July
Division