Newman v. Jefferson City, Lebanon & Southwestern Railway Co., 19 Mo. App. 100

Newman v. Jefferson City, Lebanon & Southwestern Railway Co.

19 Mo. App. 100 | Mo. Ct. App. | 1885

Philips, P. J.

This is an action to enforce a mechanic’s lien against the defendant railroads. The question presented for determination on this appeal-' involves the right of the plaintiff to make a certain amendment of the original petition. The original peti-' tion alleged that William M. Willis and S. H. Putnam,, partners, were the sub-contractors, and that the money sued for was due from them to plaintiff. At a subsequent term of court, after the lapse of ninety days from' the filing of the account as a lien, the plaintiff filed an amended petition, similar in all material respects to the first, with the exception that the time of filing the lien, which was omitted in the first petition, was averred, and! it averred that Henry Kolkmeyer was the original contractor, omitting the names of Willis and Putnam and the words sub-contractors. On motion of defendants the'' court struck out this amended petition, on the ground, that it substituted a new cause of action, and that the period of ninety days had elapsed when it was filed, within which, under the statute, the action to enforce-such lien might be brought.

This action of the court is assigned for error by plaintiff. The contention of defendants is that this amendment substituted an entirely new cause of action, *103and as such, was not within the provisions of the practice act allowing amendments of the petition at any stage of the proceedings in furtherance of justice. Counsel have discussed the merits of the question involved quite thoroughly and well. But we are of opinion that the question, so far at least as this court is concerned, is answered by the decision of the supreme court of this state in Mann v. Schroer (50 Mo. 306). That was an action to enforce a mechanic’s lien. The plaintiff in his petition misdescribed the property on which he filed the lien. Subsequently, and more than ninety days after the lien had been filed, an amended petition was filed correcting the mistake. The defendant in his answer distinctly raised the point that when this amended petition was filed the ninety days’ limitation had run. The court say: “The original petition was filed and the writ of summons was issued within the ninety days, and the amended petition was only a continuance of the original proceeding, and not the commencement of a new action.”

In the case at bar the amended petition was in conformity with the facts disclosed by the lien as filed with the clerk.

We can perceive no difference in principle between the amendment allowed in the case supra and the one at bar. The land on which it was sought to enforce the lien, or the particular building or structure, were vital. The answer might well have been made there to the amendment that plaintiff alleged he had filed a lien on another and different piece of property, and I come to meet that charge. Without a propér description no lien would avail. Here was only a mistake as to the name of the contractor. Both amendments were conformable to the account filed for the lien.

We are not here to overrule the supreme court. By express provision of the constitution under which this court exists it is declared that “the last previous ruling of the supreme court, on any question of law or equity, *104in all cases shall be controlling authority in said courts of appeal.”

Whatever may be said of the opinion in Mann v. Schroer, it is but due to the principle announced that it has the support of most respectable authority. See Phillips Mech. Liens (2 Ed.) section 429; Witte v. Meyer, 11 Wis. 299; Duffy v. Brady, 4 Abb. Pr. 432; Wasson v. Beauchamp, 11 Ind. 18.

The circuit court, therefore, erred in striking out the amended petition ; and its judgment is reversed and the cause remanded, with leave to defendants to answer.

All concur.