9 Mo. App. 396 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This was an action by a subcontractor against the contractor and owner, to enforce a mechanic’s lien. Judgment was rendered enforcing the lien. The notice of lien was served by delivering the same at the usual place of abode of the owner of the property, with a servant girl in his employ. It is contended that this is not a compliance with the statute. If this view of appellants be correct, it necessarily follows that there was no evidence to support the verdict and judgment.
The statute provides (Rev. Stats., sect. 3190) that “Every person, except the original contractor, who may wish to avail himself of the benefit of this act [the act concerning mechanics’ liens] shall give ten days’ notice before the filing of the lien, as herein required, to the owner, owners, or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount, and from whom the same is due.” The Practice Act (Rev. Stats., sect. 3505) provides that notices shall be in writing, and may be served on the party or his attorney, by delivering to either of them a copy in writing, or by leaving the same at the usual place of abode of the party
It is true that the doctrine in Missouri is that the mechanics’ lien law should receive a liberal construction ; but it is a mistake to suppose that the courts are to do away, by construction, with the plain provisions of the act. The law, for obvious reasons, provides that the owner whose property is made liable for an indebtedness not arising out of any contract to which the owner of the property to be charged with the lien was a party, shall be served with notice. The statute provides for the case of the absence or non-residence of the owner, by prescribing that-the notice may be served upon the owner or his agent; but the statute neither specifies nor indicates any other service than personal service, and whenever this is the case, it is settled that personal service is meant. To the cases cited by appellants to this effect, and to those referred to above, a mass
The judgment is reversed aud the cause remanded.