67 Mo. App. 237 | Mo. Ct. App. | 1896
The defendants J. W. andE. C. Barnes, composing the firm of Barnes & Company, contracted with Francis A. Drew, the plaintiff in error, to make some improvements on a building belonging to him and situated in city block number 1691 in the city of St. Louis. Barnes & Company sublet the carpenter’s work to John P. Turley, the defendant in error. Turley claimed to have completed the work according to the original contract, and also to have done some extra work. Barnes & Company claimed that he failed to
Barnes & Company recovered a judgment against Turley before the justice and Turley 'appealed. This cause was assigned to division number 5, of the St. Louis circuit court, and the suit to enforce the lien was assigned to division number 2.
On January 14, 1892, the lien suit was referred to Leonard Wilcox, with direction to take an account. On March 7, 1892, upon motion of Turley in the appeal case, the court ordered a consolidation of the action with that pending in division number 5, and also ordered that it be referred to the same referee. Drew had no notice of the motion to consolidate, nor did he consent to the consolidation.
The referee heard the two cases together, but reported them separately. In the appeal case he found that Turley owed Barnes & Company $45.85 for breach of contract. In the lien case he found that Barnes & Company owed Turley $70.20, leaving a balance due Turley of $24.35 and that Turley was entitled to a lien therefor on a three story brick building situated in block 1691, fronting south on Lindell avenue, and running back northwardly with a width of twenty-eight feet, ten inches, between parallel lines, bounded north by line beginning on west line of Grand avenue, eighty-four feet, three inches, north of its intersection with Lindell avenue, running west twenty-eight feet,
The reports were confirmed by the court and judgment was rendered against Barnes & Company for $24.35 and costs, which the court declared to be a lien on a lot fronting fifty-one feet, eleven and a half inches on Grand avenue instead of twenty-eight feet, ten inches, as found by the referee.
Drew sued out a writ of error from the supreme court on the constitutional ground that by the proceedings and judgment he was about to be deprived of his property without due process of law. Eor other grounds of reversal he claimed that prejudicial error had been committed against him in the consolidation of the actions, and that, as to the property affected by the lien, the judgment did not conform to the finding of the referee. The supreme court held that, as no constitutional question was presented by the record, it had no jurisdiction of the cause, and it ordered a transfer of the case to this court for final determination.
As the plaintiff in error filed no bill of exceptions, he is in no position to have the order of the circuit court consolidating the actions' reviewed here. It is a question of practice merely, and, however erroneous, could only be taken advantage of ■ by exception duly taken and preserved. Again, the record shows that the plaintiff appeared before the referee, defended against the suit to enforce the lien, and received “the benefit (as a credit on the lien account) of the damages allowed Barnes & Company in the other action. It also appears that, while the causes were heard together, the referee gave the parties an opportunity to introduce any additional evidence which might be pertinent in either case. We, therefore, can not see how the plaintiff in error has been prejudiced by the order,
By the judgment of the circuit court the lien was enforced against fifty-eight feet, eleven and a half inches, of land fronting on Lindell avenue and belonging to plaintiff in error, whereas the referee reported that the land upon which the improvements were made fronted only twenty-eight feet, ten inches, on Lindell avenue, and that the balance of the lot was covered by other buildings which belonged to plaintiff in error. The report of the referee as to the facts was equivalent to a special verdict, and the trial court could only set. it aside entirely or approve it. Having approved it,, the judgment must necessarily conform to it. Hence,, the judgment as entered- must be set aside, and the cause remanded to the circuit court with instructions to enter a new judgment in conformity with this opinion.
