*1 рro the further selling provision 4286, but also of of Section pool felony guilty of a any person makes statute that of the same vision wager money, or bet depository or custodian becomes the “who or skill, speed or contest upon any trial wagered, or or be bet take be made which is power man or beast of endurance place state.” wdthout this petition allegations of the contend that from the
Appellants also laws and statutes violative of other propоsed business would be unnecessary it is State, purposes of this but for men- above for the reasons petition, thereon. rule .Plaintiff’s against defendants cause of action to state a tioned, failed Entertaining effect. and without void judgment rendered ap- us to unnecessary for rule on case becomes this view of the pellant’s error. first assignment All concur. judgment is reversed. Woodling Heat D. Doing as Miner
Miner D. Woodling, Business Operating Westport Ventilating ing Hotel Company, v. al., and Louis Corporation, John Heckel Company, et Business Heckel, Co-partners, Doing Brothers, (2d) 55 S.W. 477. Appellan t s. One, December 1932.
Division Edward E. Naber appellants. *2 Wglder
Morrison, Berger Eugeni, Douglas & Stripp for re- spondents. *3 intervening
FERGUSON, by mechanic C. This isan an County lien claimant a from decree of the Circuit Court of Jackson brought Woodling doing in an equitable Miner D. business (herein as Woodling Heating Ventilating Company Miner D. Woodling) 3180- provisions to as of Sections referred under the inclusive, 1929, 3187, Statutes to enforce mechanic’s Revised adjudicate and interests claim and determine and in, claimants, claimants and other various mechanic lien other building thereon City erected lots Kansas certain Westport defendant Operating Company, corporation, Hotel hereinafter referred to Hotel Company.
The misgiving, writer with an undertakes, some to make accurate history and concise statement of of the matter sufficient to an understanding questions 1925, involved. On or March 7, about the Hotel Company commenced the construction and erection of a story building 4, “E”, fourteen hotel 1, 2, on lots block Resurvey City. Second of Reid’s building, Additiоn in Kansas commonly Hotel,” known as completed, the “President was furnished ready occupancy February purposes for hotel on or about 1, May 1926. 21, On 1926, the Heckel John appellants, Louis Heckel, co-partners, doing (hereinafter business Heckel ‘Brothers Brothers), referred to required as Heckel by statute, within the time mechanic lien statement, Company the Hotel said lots building and the hotel office thereon, erected in the County. Clerk of the Circuit Court of Jackson This was statement purсhase price, aggregate for the in an $3,743.71, amount of of barber shop furniture, fixtures, equipment supplies. Though numerous are listed, right items claim a to have a lien established and except enforced items, was later abandoned as to all three a mirror case, On Brothers, cabinet and steam sterilizer. June required by statute, filed an amended lien statement in the office clerk the circuit court. This statement May 21, 1926, payment same as filed on but showed a $2,000 Company May on the account mаde on 1926. Hotel On the date, 11, 1926, Woodling June filed an County the Circuit Court of Jackson under our provid- statutes *4 ing proceeding. Woodling against such a claimed lien the hotel property labor, for materials and asked to have such lien enforced any claiming defendants, and all others or and “that mechanic’s encumbrances, liens, right, or in other interest said real estate title required, building severally, claims, rights, and be to submit their adjudication titles and liens to this court for determination and both ’’ validity as to thereof; the of the same and priorities the extent and having each persons “that other said defendants and all or assert- ing building claims said real be and estate and restrained enjoined bringing any proceeding separate further in from suit against” property; rights, interests, “that the various said and liens charges of the various defendants and all in other claimants building adjudged said land and be determined marshaled, property proceeds be sold the thereof be applied according legal and distributed to the various rights following priorities parties.” of the were made de- Woodling fendants in the suit: the Hotel Company, as Works, cor- a Wire and Iron property, Southwest owner the Company, corporation, a L. Electric poration and W. Hutchinson Company, trustee Trust lien Federal Commerce claimants, mechanic D. Edward Company and by Hotel in a made deed trust Company. Hotel of trust made Ellison trustee in three deeds the mechanic each of in answers and The defendants due cоurse filed lien setting its defendants, up a claimants, filed cross-bill made Heckel Brothers though claim of will the lien claim. It noted be 1929), R. 3181, (Sec. S. proper public records” was “disclosed office timely recorded an been filed and abstract thereof 1926, conformity with 21, of the clerk of May the circuit court on (Secs. 1929), they R. made 3162, the statute S. not with Woodling not at time served parties to and were legal notice that other form therein summons 19, 1926, August On and within pending. had filed and was been Brothers claim, Heckel ninеty filing of days after the their County to enforce of Jackson brought Circuit Court an action required by 3172, Revised Statutes and foreclose their lien as Hotel for the Dean, Frank J. Receiver Company, 1929. The Hotel Edward Company, Company, Commerce Trust Trustee and Federal Ellison, D. made in' the Heckel Brothers’ Trustee were defendants Dean, Receiver, action, except whom had been made defend- Woodling Company Receiver, Dean, The Hotel ants suit. answer, general denial, in Heckel Brothers’ each an a Woodling plead suit. pendency did not mention or On 10, 1926, Company adjudged December was a bank- the Hotel rupt discharged was the United States Court and District Dean Bankruptcy Com- appointed Receiver and Trustee in for the Plotel pany. Brothers, Dean, Upon plaintiff, motion Heckel trustee was, 1927, party in bankruptcy, on made a defendant February ap- brought day his the action entered them and on the pearance January 8, 1927, therein. On title and interest building bankrupt, Hotel hotel and lots Company, a in and conveyed Corporation, Hotel sold and President corporation a property executed deed of trust Fidelity Company securing Bank National and Trust as trustee an indebtedness therein described. On March Brothers “learning of pendency Woodling equitable suit” filed motion party therein to defendant and to “have *5 and interests and ad- a mechanic lien claimant determined judicated” suit, sustained; they that which were made motion was parties Woodling granted defendant leave to file an and intervening petition. 19, 1927, Heckel answer On Brothers and March Woodling filed in the separate intervening petition their and answer 1926; reciting, May 21, of their mechanic lien on filing of 11, 1926; their amended lien on June the commencement August 1926; an action to such lien the indebtedness enforce on Company charged of the Hotel for in the set the articles as account asking adjudicated.” out and that and .“determined August 23, 1927, praying On Heckel a motion filed Brothers Corpоration Fidelity to make the President Hotel Bank and National Company parties and Trust Woodling suit. The motion to the ¡Bank sustained and Hotel Company Trust President Corporation parties were made defendant and summons ordered. The Hotel Fidelity Com- Company National Bank and Trust pany, equitable suit, separate, defendant in the identical, intervening petition demurrers to Heckel Brothers’ which Company overruled. The Hotel Cor- and the President Hotel joint peti- poration intervening filed a answеr Heckel Brothers’ to tion, general Company which awas and Trust denial. Bank separate allega- filed its general answer which was a with an denial tion that the lien of the of trust it was named as deed prior trustee “is lien, any,” senior and if Heckel Brothers. 7, 1928,
On March Brothers’ claim was taken tried and under advisement claimant, the court. Another mechanic lien American Metal Corporation, party Products not named as a Woodling suit, party. had June and been On intervened 23, 1928, a Woodling final decreе was entered suit and court found that the mechanic liens claimed the suit “have been released and satisfied that the American Corporation Metal Products said Louis Heckel John Heckel only parties claiming are the to this action now mechanic’s liens property” said and “that American Metal Products Cor- intervening poration, corporation, petitioner' herein, is entitled judgment against Westport Operating Company, Hotel defendant $1,914.99 in the sum of on account materiаl furnished for building the credit the hotel used in erected on. judgment may real estate and that said special be declared a property.” mechanic’s on said that “The court further finds said Louis Heckel and John Heckel come did not into required by adjudged within the time statute” and it then “intervening Heckel Brothers, petitioners herein have recover Westport judgment against Operating Company, defendant Hotel $1,942.50 they the sum of have execution therefor in are not and John Heckel entitled meсhanic’s said Louis Heckel improvements property above described or the thereon into the reason did not come this action within time required by statute.”
818 assigned
In a for trial Heckel as motion a new Brothers ruling trial did not “come into” error the of the court that required by statute and Woodling suit within the time equitable tbe finding.” The upon lien based denying them “a mechanic’s 7243 and alleges Sections a new trial then that motion for 1929), R. S. “uncon (Secs. 1919 3183 and are Statutes Revised 2 Constitu 30, Article of the violation of Sectiоn stitutional in 1, Article of tion of State of Missouri” “in violation the Section in 14 that said sections Constitution of the United States” property without Brothers their “deprive the of interveners “un statutes process due of law” and that said sections the Con Article of constitutional and in violation of ’’ being trial for a new of Missouri. The motion stitution State granted to appeal was appealed overruled Iieckel Brothers and the question involved. ground this court on is the that a constitutional assignments as we have of error here are the same those made specified for a trial. as been made in the motion new presence wholly dependent upon the of a sub- jurisdiction
Our is pre- question properly timely stantial raised constitutional “involving of United the construction of the Constitution sented 12, Art. of 6, Constitution States or of this State.” [Sec. Missouri.] jurisdiction ground If will be noted we have is that alone. It question appearing first suggestion that of constitutional a gen- Relying a new on the case is found the motion trial. fоr time in eral rule that a for the first question constitutional raised jurisdiction give motion for a new trial comes too late to this court respondents say: jurisdiction, “the when it would not'otherwise have question alleged constitutional to timely was not to based raised” and the ease should be transferred Appeals. Appellants reply of ruling Court that the of the court judgment appellants final that did not come into its decree thereby equitable required by statute and within case the time first right enforced wаs the lost a lien established and to have the statute provisions in the that occasion course of case and held to relating to an suit of this kind were invoked operate bar their claim and that the new to motion chal- opportunity trial was therefore the earliest afforded them to constitutionality lenge Appellants point out that such statute. intervening petition not respondents’ did raise demurrers their right question question their under statute have claim suit and that the demurrers enforced оverruled; respondents provisions plead did not relating equitable proceeding appel- in bar the statute right to maintain and enforce lant’s lien claim or objection by respondents that the suit and the introduction testimony ground on the had not entered the prescribed by provisions the statute *7 relating was, by to court, overruled. it Thus appears opportunity that there was no occasion or for to challenge by pleading ruling upon the statute and the of the court respondents’ оbjection any testimony to of the introduction was ad- respondents’ verse to appellants op- contention and did not afford portunity thereupon challenge the constitutionality of the statute “A question timely constitutional must be raised the course of orderly procedure. Accordingly plead- it be raised in should ings if not, due to If opportunity be.found there. then at the first kept and ... may alive. In rare cases ... be raised for the first time in the for Connor, motion new trial.” v. [Miller 250 Mo. 157 S. W. We are inclined think that under 81.] procedure appellants’ had and circumstances of this case that upon constitutionality attack in- of the sections statute arising volved was at the earliest in the course opportunity of orderly procedure. appellants’
But does contention present a real constitutional question “involving- the United construction of Constitution of States or of required give jurisdiction this State” as this of ground? on that To determine this it becomes neces sary to refer to various touсhing sections of the statutes liens allowed for work and labor done and materials and fixtures furnished the erection or pro construction a building prescribing of preserving cedure for enforcing liens, appel such and to consider lants’ in regard contention applica thereto and the construction and by appellants tion thereof together application with the inter pretation of such statutes as made court. When trial appears constitutionality done it appellants’ attack provisions certain such statutes is limited to the assertion construed, interpreted statutory applied by the trial court the provisions question would be unconstitutional at same time appellants necessarily given concede that if such statutes be the con application struction and for which they which contend they acted the statutes constitutional. We refer the various sections of the statutes as found Revised
Statutes being 3 Chapter Article 25. 3161 Section fixes time within whiсh the lien Appellants statement must be filed.
their lien prescribed. statement within pro- Section recording vides for an abstract of the lien statement in the office of clerk of the circuit court and such of appellants’ abstract duly recorded. .statement requires “all actions” days ninety to enforce to be the lien “commenced exist, by virtue the lien” and that “no lien shall continue days, after the lien article, provisions ninety of this for more than shall be instituted an action filed, time shall be unlеss within an made for provision 3180 we find In Section thereon.” against claiming liens rights of all action which the adjudicated. Said may property an interest in the be determined section is as follows:
“Any adjudicated may all liens in be provided this article determined in the same and the interested which the property property in one may adjudicated, and enforced is claimed be determined claimant after the may brought be action court, clerk office of the such lien is filed statement for by any оwner brought may provided, as herein or'such *8 mortgagee or affected, or property any or lessee of the of to be be an action shall any of thereon. Such holder other encumbrance rights, determining the various purpose of equitable action for the claim- lien claimants and interests and liens of the various mechanics’ upon interest or leasehold any ants of other liens and owner of per- any such enforcing rights of and all property said the buildings in, against being sons to the the lands and property, or property, and either of of land the same and for sale such buildings marshalling or distribution either of the same and for among parties according respec- proceeds to their thereof the equit- equitable rights Such shall be an legal tive therein. action enforcing establishing and purpose determining, able action for the of and for rights parties thereto respective various distributing proceeds of purpose marshalling, applying of in said may proрerty the sale of such be ordered and decreed ’’ action. following parties to section, specifies who shall be made such action. claiming any upon, all persons
“AH' lien encumbrance or of and lessees persons any rights all owners or by any may be it, of all as disclosed property to be affected and said action and records, parties made to proper public shall be said join therein, but parties may plaintiffs as whose interests are divers join be they plaintiffs, they then shall made defendants. if do not to, rights having any in, Any person, claimant or other any rights are not disclosed upon property or said of it whose record, by shall be bringing proper said action the time of at judgments actions, by proceedings, orders and bound be upon application to the court any person such be entitled shall made, before, by a party to any'time disposition said action final at judgment the final of proceeds prop- the court therein of-the of said erty rights and shall according respective par- be entitled ticipate proceeds any it, of property of the sale of such may same then remain under the be thereafter received or jurisdiction any If court. at the commencement of said action person rights party, by whose are disclosed the record is omitted as a may he party upon thereafter be said action either his made own application application party other to said actiоn byor its own motion.” ’ It will be appellants remembered lien claim been filed had that. ‘‘ duly and an abstract thereof recorded and- disclosed proper public Woodling equitable records” at the action time though requires was commenced and above section -such claimants shall be made action not were to' the action and 'not or noti- summoned days- fied therein: appellants, ninety filing Thereafter within after the .of their statement, an commenced action to enforсe the lien. But on 4, 1927,, and more than nine March months their lien statement, appellants, having. Wood-ling learned of the equitable action, provision availed themselves -above said, section, that “if at the any-person commencement of action he‘may whose party disclosed record -is omitted-as thereafter party applica- be made a his to-said action either own or upon application tion party other to-said action a, court of motion,” its-own рarty and'-filed motion to made and have their lien, to enforce had prescribed by adjudicated and enforced in the *9 Woodling equitable they action. The motion was sustained were parties Woodling- intervening petition to the their suit filed by doing appellants, say pending action, therein which effect, in their timely filed, merged equitable court, into the 'action. trial The appellants say erroneously, applying construing other sec- and. cite, of statute, held, tions the which shortly we shall that the appearance of appellants, equitable they, in the action for the first time, having an action commenced to enforce-their lien and same not ninety days filing been commenced after the of lien' their state- within right expired -their lien against ment to a had them a-lien and-denied property. Sections 318-3and 3187 so -by were construed the trial (cid:127) - , sections court. Said follow-:^ - equitable provided Section 3183.' “The action above for shall be brought proper regardless in the court of record of the amount by plaintiff plaintiffs action, in claimed such all: other or brought been lien may any'mechanic’s suits -that have ..claim or .on. parties stayed prosecuted, and demand shall be and no further action parties equitable any in to such such other suit shall be made ac- rightfully costs foregoing provided, any as in the sections action shall in such other crued behalf of lien claimant in- After the party. be a of lien claim of such part and become brought shall be equitablе separate suit stitution such action no any of or upon any property, lien mechanic’s or claim adjudicated en- it, persons adjusted, be but shall in such equitable forced suit.” entry motion, or ‘‘Any answer, 3187. pleading, or other or course, appearance by pleading or made followed filed due equitable claimant, by any lien within
any such mechanic’s days lien ninety preliminary of such claim- after statement or, by required law, therefor, office proper ant has filed in the been by summons, in mаde, required at on a filed, when law equitable ninety-day action, period such within such issued before or equitable action including within which on mechanics’ liens suits required commenced, equitable then provided action is are to be by such pending, still shall be a of an action deemed commencement . lien claimant . .” mechanic’s provides will other which
It be noted that Section that suits brought at time pending have been on lien claims and equitable stayed filing and no further action “shall prosecuted, parties suit shall be made such other ap- has direct equitable part to such action.” This of the section no plication appellants’ action enforce to the instant case as their equitable had commenced claim not been filed at the suit was time by language urged support of their con- used intent, sections involved application tention to the effect 3183 was construed together. as read sentence of Section last ap- operate by the triаl court to as bar the action nullity pre- no pellants and of effect and make that action Though “disclosed serving appellants’ appellants’ lien. lien claim was proper public they not made records” respondents therein. The summoned or notified contend, adopted view, to have and the trial court seems required appellants were suit and nevertheless bound into come filing'thereof their own motion to discover the ninety days statement their right Appellants lien. failed to do so lost to a *10 parties notified therein say, that not been made the suit and statutory they commencing to enforce were from action not barred learning alive; kept their lien and that thereby the lien that into come they equitable thereafter of the were authorized to action 823 adjudi- that merged action pending and have their action into equitable cated in the action; of Section and that while the terms 3183 barring separate of a the commencement oрerate all claimants who would and bind bar operate that action it did not as a them. support
In question their claim exists that constitutional 3183) say (the “if this last clause” clause “means what clearly unconstitutional.” trial court held is it did In argument this statement is in appellants’ found substance of constitutionality to the reference both Sections and 3187. 3183 Appellants applicable contend that 3187 while Section is to the erroneously to the applied pro court visions thereof Appellаnts’ complaint them. not is any specified event the sections of the statute unconstitutional but that as applied construed the trial court would be ultimately unconstitutional and is this, reduced the trial court meaning misconstrued sections and and effect erred in applying court, them this case. It was held this Nickell v. City, 338, Kansas St. L. & Co., (2d) C. Railroad Mo. 32 S. W. challenge that: “A the statute is unconstitutional event only challenge is the that is to raise a constitutional sufficient question and invest this court appellate jurisdictiоn.” with We said Purchasing Service v. (Mo.), (2d) 81, Co. Brennan 32 S. W. that: “To invest this court jurisdiction, challenge with must be that inherently the statute is totally challenge, invalid. The validity effective to invest this court with jurisdiction, must attack the statute interpre event and that a certain postulate tation of the statute renders it invalid is insufficient. We cannot speculate that appellate question determining will de erroneously.” cide it Brickey (Mo.), And in Dietrich v: 327 Mo. (2d) S. W. only it was said: kind of an is “The attack that jurisdiction
sufficient to invest court with on is that the inherently wholly statute is every unconstitutional from view.” also, [See, v. & Savings Corbett Lincoln 4 W. (Mo.), Loan Assn. S.
(2d) 824.] City cause is to the Appeals. transferred Kansas Court of
Siurgis CG., Hyde, concur. opinion PER The foregoing CURI A M: C., FergusoN,
adopted opinion judges as the All of court. concur.