150 Mo. App. 650 | Mo. Ct. App. | 1910
(after stating the facts. — The action of the learned trial judge in dismissing the case on the grounds stated in the motion to dismiss was evidently taken inadvertently and was properly set aside by him.
Our statute, section 6519, chapter 91, article 22, Revised Statutes 1899, now section 7617, chapter .65, article 9, Revised Statutes 1909, provides that justices of the peace in cities with 300,000 inhabitants or over “shall have jurisdiction in all actions brought to enforce mechanics’ liens, as provided by law for enforcing such liens in the circuit court, when the amount of balance claimed to be due does not exceed $500,’’ and that “all existing provisions of law now applicable to justices of the peace and the practice and procedure
It has been held by this court in McDonald v. Nicholson, 67 Mo. App. 415, that it is sufficient, in a suit to enforce a mechanic’s lien, that the statement or petition is actually filed within the time prescribed in the notice and with the justice named therein. This we hold to be the correct rule. It is true that our court, interpreting section 3850, Revised Statutes 1899*, section 7410, R. S. 1900, has held, in several cases, that an action is said to have been commenced before the justice at the time of issue of the summons to the constable. [Heman v. Larkin, 99 Mo. App. 294; 73 S. W. 218; Hornsby v. Stevens, 65 Mo. App. 185; Rosenthal v. Windensohler, 115 Mo. App. 257; 91 S. W. 432; Fabien v. Grabow, 134 Mo. App. 193; 114 S. W. 80.] Hornsby v. Stevens was an action to recover the value of services. In the Fabien case, which was on a mechanic’s lien, and which referred approvingly to the Hornsby case, the precise point here at issue was not in judgment. Rosenthal v. Windensohler was a suit by attachment. Heman v. Larkin was on a special taxbill. These eases correctly interpret the law applicable to cases generally. We do not think that the same interpretation should he applied to cases instituted under the mechanics’ lien law before justices of the peace. Notwithstanding what is said in these other cases on this point, we reiterate and follow what is held in MoDonalcl v. Nicholson, supra, as applicable to suits instituted before a justice to enforce a mechanic’s lien.
Whether the petition was filed in time was not a matter to be shown by the transcript and surely the transcript was not conclusive as to that fact. As was said in Fabien v. Grabow, supra, l. c. 198, “Justices of the peace are required to make certain entries on their dockets (R. S. 1899, sec. 3844)', and are also re
Granting that by the entry made by the justice before whom the suit was instituted, he means to recite that it was docketed by him the 10th of January, our court has held in the Heman Case, supra, that this entry may be impeached, citing Gott v. Williams, 29
It follows that the docket entries and recitals, including the judgment, were not conclusive or even prima facie evidence of whether the petition or statement was filed within the time specified in the notice, and the circuit court was right in' setting aside its order dismissing the action and reinstating the case, so that respondent may prove, if it can by evidence aliunde, that it has duly filed with the circuit clerk the notice required by section 3895, Eevised Statutes, 1899, and that it filed its petition or statement with the justice within the time specified in said notice. If, it is. within the power of the plaintiff here to prove that, the statement was in fact filed with the justice named, on the date named in the notice filed, it should be allowed to do so. If it establishes that fact, then it should not be defeated in its claim by any error, mistake or oversight of the justice or constable. The cru
The judgment of the circuit court in setting aside, the dismissal and reinstating the case is affirmed, and the cause remanded to the circuit court for further proceedings in due course of law.