72 Mo. App. 646 | Mo. Ct. App. | 1897
This is an action by a subcontractor to enforce a mechanic’s lien. The suit was instituted on the fifth day of December, 1896, before Justice Zimmermann. It was alleged in the complaint that the defendant V arney was the original contractor and that plaintiff: contracted with him to do the work; that the defendant Kempf was the owner of the property and that the other defendants were encumbrancers. The justice issued a summons for all the defendants, which was returned executed as to all except Varney, who could not be found. The case was passed from day to day, but no further effort was made to secure service on Varney. On February 4, 1897, the defendant Kempf applied for a change of venue from Zim
It is conceded that a judgment enforcing a mechanic’s lien in favor of a subcontractor is bub an incident to a judgment in his favor for the debt against the person with whom he contracted. This is in conformity with the decisions (Johnson v. Schuler, 49 Mo. App. 198), and the statute which provides that the parties to the contract shall be made parties. (R. S. 1889, sec. 6713.) It follows, therefore, that the judgment of the circuit court must be affirmed if the justice’s judgment against Yarney is invalid. Under the view which we take of the case, the question suggested is the only one we need discuss. We doubt whether Justice Zimmermann had authority to entertain the application for a change of venue. After the return of the constable as to Yarney, did Zimmermann have any authority to make any order in the case except for the purpose of acquiring- jurisdiction over