Patrick v. Abeles

Scott, Judge,

delivered the opinion of the court.

The nature of this action must be determined by the petition filed in the cause. Although the proceedings, as instituted, would, with proper evidence, have warranted a judgment for the sale of the property under the lien, yet, failing to obtain a judgment under that law, there was nothing to prevent the plaintiffs from having a general judgment if the pleadings and evidence warranted it. As the petition alleged *186 that the defendant owed the plaintiffs for lumber furnished him for building his house, if the fact was established it would clearly authorize a general judgment. As to the evidence, the verdict of the jury shows its sufficiency.

The circumstance that the account was made out against the contractor was not a matter in bar of the action, but a matter to be weighed by the jury in determining the question of the defendant’s liability on his alleged personal undertaking. It was not conclusive evidence, as, notwithstanding such an account, the plaintiff could show that the credit was given to the defendant.

Even admitting that the court at the close of the plaintiffs’ case might have instructed the jury that they failed to make out a cause of action under the law concerning liens, yet, as the instruction was refused, and in the further progress of the cause it was ascertained that the defendant was indebted to the plaintiffs and the jury so found, and such finding meets with a support in the pleadings, on what ground in law or justice should the judgment now be reversed for refusing an instruction which, had it been given, as it afterwards turned out, would have defeated the justice of the cause ? The case on its merits was fairly put to the jury, all the instructions asked on either side having been given, and we see no reason for disturbing the judgment of the court.

As to the question of jurisdiction, although consent can not give it, yet after the cause was taken by consent of the parties to the land court, they might have left that question to be raised by some other person. But, as was said in the case of McCune v. Hall, 20 Mo. 596 , this court will not put such a construction upon the act organizing the land court as will make it necessary for parties first to try their actions in order to find out what court has jurisdiction to hear and determine them. Here is a case which might have been heard in either court according to the evidence. Having been determined in one of them, there is no reason for reversing the judgment. It would be extremely inconvenient to make the jurisdiction of a cause depend upon the evidence *187 produced at the trial. This is not such a question of jurisdiction as arises between courts of different classes or grades. The jurisdiction of one court has been distributed among several. It was impossible to draw a clear line defining the jurisdiction of each. There must be necessarily some cases in such a distribution as will mate it a matter of doubt where they are to be tried. In such we see no réason why the jurisdiction should not depend on the form of the action and not on the facts proved on the trial.

Judge Napton concurring,

the judgment is affirmed.