Picot v. Signiago

1. A. contracted to build for B. a house; C. and A. agreed to secure B. against all liens, claims and losses. Liens were filed by sub-contractors against said house upon which writs of scire facias were issued against A. and B. These writs were served upon B., the owner, but not upon A. Judgments by default were rendered against B., which he paid. Hdd, in a suit instituted by B. against C. to recover 'damages for the breach of the agreement above referred to, that the records and proceedings in said suits against B. were admissible in his favor to show the amount of the judgments, and the payment of them by him. The judgments were not, however, conclusive upon C. 2. Judgments in enforcement of liens against A. and B., upon service of process upon both, would be conclusive upon C.

Error to St. Louis Court of Common Pleas. The case has heretofore been before the supreme court.. Por a statement of the facts see the report of the decision of the supreme court, 22 Mo. 587. On the second trial the-plaintiff, Louis G-. Picot, introduced in evidence, against the objection of defendant, the records and proceedings in vari-otis suits instituted in the St. Louis circuit court, by various parties, against said Picot and Porter Push, to enforce liens against tbe building contracted to be built by said Buslt for said Picot. From these it appeared that the plaintiffs in said suits (contractors under Bush) had filed in the clerk’s office of the St. Louis circuit court their demands for the purpose of completing their liens; that writs of scire facias were issued in each case against said Picot, the owner, and said Bush, the contractor; that there was no service of process upon Bush, nor had he any notice of the various proceedings ; that Picot failed to appear, and judgments by default were rendered against him, and orders of execution were made against the market-house. These'judgments Picot paid. The court also admitted in evidence, against the objection of defendant, transcripts of entries in the docket of justice Kitzmiller showing judgments against Porter Bush in various suits instituted to recover demands accruing to the several plaintiffs as sub-contractors or material men under Bush, and which they had filed as liens. Picot voluntarily paid these judgments. The defendant offered to prove that at the time of the agreement between Bush and Picot it was agreed and understood that Signiago was only security for Bush; that at the time of the filing of the lien against the market-house and all the subsequent proceedings said Bush was out of the state, and that there was never any service had upon him in any case whatever; that he did not owe any one of the parties to the liens against the market-house any sum whatever when he left the state. The court ruled out this testimony. The court, among other instructions, gave the following : If the jury find that before the commencement of this suit the plaintiff paid the judgments read in evidence rendered in the circuit court of St. Louis county and by the justice of the peace, they will find for the plaintiff the amounts so paid and costs paid on said judgments and proceedings, less .the sum plaintiff still retained in his hands.” The jury found for plaintiff. I. Rush was not a party to the proceedings by scire facias. No judgment could properly be rendered against Picot. (Wibbing v. Powers, 25 Mo. 599.) The judgments against Picot were not valid liens. Signiago was not a party to the proceedings against Bush and Picot. He ought not to be made to pay Picot what neither he nor Bush had an opportunity to contest. II. The court below ought to have excluded the transcripts of the justice. They were general judgments and not judgments such as are required under the lien act. (R. C. 1845, p. 735; Sess. Acts. 1843, p. 84.) III. The court erred in excluding the evidence offered by defendant.