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Matlack v. Lare

George Matlack v. John G. Lare

Matlack v. Lare, 32 Mo. 262 (1862)
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Court
Supreme Court of Missouri · State Highest Courts
Decided
March 15, 1862
Judges
Bay, Other
Citations
32 Mo. 262
Cited by 15
Headnotes
Jurisdiction. — A party may waive part of Ms demand for the purpose of giving jurisdiction to an inferior court. (Iiempier v. Schneider, 17 Mo. 258, and Denny v. Eckelkamp, 30 Mo. 140, affirmed.) Mechanic’s Lien — Description.—Eor the purpose of enforcing a mechanic’s lien, the real estate upon which the buildings are erected must be described with such certainty as to identify it.
Summary
Appeal from St. Louis Law Commissioner’s Court. Plaintiffs commenced suit in the Law Commissioner’s Court, March 17,1859, upon a mechanic’s lien, filed in the office of the clerk of the St. Louis Land Court, March 14, 1859, for the sum of one hundred and fifty-seven dollars and sixty cents. At the trial the plaintiffs offered in evidence a certified copy of the lien as filed in the Land Court, to the admission of which defendant objected, because the court had no jurisdiction over the sum of one hundred and fifty dollars. The plaintiffs thereupon asked leave to remit the sum of seven dollars and sixty cents of the amount claimed in the lien, so as to bring the demand within the jurisdiction of the Law Commissioner’s Court; which was done. The statement filed with the account in the Land Court described the property as two three-story brick houses, situated on the east side of Fifth street, between Franklin avenue and Morgan street, and reputed to be owned by the said John G-. Lare. I. The Law Commissioner’s Court had no jurisdiction of the subject matter of the action, the amount claimed in the lien and petition exceeding one hundred and fifty dollars. The St. Louis Land Court has exclusive original jurisdicdiction whenever the amount claimed exceeds one hundred and fifty dollars. (Laws 1857, p. 669, § 6.) The amount for whiclrthe lien is filed determines the jurisdiction. (R. C. 1855, p. 1072, § 28.) II. The court erred in admitting the transcript of the lien filed in the Land Court, as neither the lien nor the petition contain any description of the property to which the lien is to apply. I. The court had jurisdiction. (R. C. 1855, p. 1072 ; Act 1857, p. 668.) II. The jurisdiction is to be determined, not by the amount claimed in the lien filed in the Land Court, but by the amount claimed in the action to enforce the lien. (Act 1857, p. 669, § 6 & 7; Annis v. Bigney, 28 Mo. 247.) III. The court did not err in permitting plaintiff to remit seven dollars and sixty cents, to bring the amount claimed within the jurisdiction of the court. (Denny v. Eckelkamp, 30 Mo. 140 ; Shreve v. Skeele, 31 Mo. 216.) IV. There was no error in admitting evidence of the filing of the lien in the Land Court. (Cornelius v. Grant, 8 Mo. 59; Schulenburg v. Gibson, 15 Mo. 281; R. C. 1855, p. 730, § 41, 42; Acts 1857, p. 669, § 4.)

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Bay

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Bay, Judge,

delivered the opinion of the court.

In Hempler v. Schneider, 17 Mo. 258 , and Denny v. Eckelkamp, 30 Mo. 140 , this court held that a party might give jurisdiction to an inferior court by a voluntary renunciation of a part of his demand. This cause, however, must be remanded, for the reason that there was no lien to enforce. To entitle the plaintiffs to a lien it was necessary for them to file with the clerk of the St. Louis Land Court a just and true account of their demand, which they seek to make a lien upon the buildings and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply. In this case the account filed contains no such description of the property as would enable any person to identify it. It describes it as two three-story brick houses on the east side of Fifth street, between Franklin avenue and Morgan street. No boundary is given, nor is the number of the lot designated, nor does it even state that the property is in the city of St. Louis. To enforce a judgment upon a mechanic’s lien, the law requires that the execution shall be a special fieri facias — such an execution issued upon this judgment would fail to disclose to the officer the property to be sold. He certainly could not identify the property by the description in the fieri facias. The defect is fatal as to any lien; but according to the decision in Patrick v. Abeles, 27 Mo. 184 , the plaintiff may take a general *265 judgment, and to enable them to do so we shall remand the cause.

Judgment reversed and cause remanded, the other judges concurring.

How later courts describe this case

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Cited by 15 cases

View all citing references →
1873–1874: 11875–1876: 21879–1880: 11887–1888: 11889–1890: 11891–1892: 21895–1896: 11901–1902: 11903–1904: 11911–1912: 11927–1928: 11955–1956: 11969–1970: 118732026peak 1875 · 2

Relies on it most ⓘ

  1. Fitzpatrick v. Thomas61 Mo. 512 (1876)
  2. Hooven, Owens & Rentschler, Co. v. John Featherstone's Sons111 F. 81 (8th Cir. 1901)
  3. De Witt v. Smith63 Mo. 263 (1876)
  4. Williams v. Porter51 Mo. 441 (1873)
  5. Hertel Electric Company v. Gabriel292 S.W.2d 95 (Mo. Ct. App. 1956)
  6. Kinnear Manufacturing Company v. Myers452 S.W.2d 599 (Mo. Ct. App. 1970)

Most recent

  1. Kinnear Manufacturing Company v. Myers452 S.W.2d 599 (Mo. Ct. App. 1970)
  2. Hertel Electric Company v. Gabriel292 S.W.2d 95 (Mo. Ct. App. 1956)
  3. Jones Lumber Co. v. Snyder300 S.W. 850 (Mo. Ct. App. 1927)
  4. Clark Williams Realty Co. v. Briggs148 S.W. 147 (Mo. Ct. App. 1912)
  5. Hammond v. Darlington84 S.W. 446 (Mo. Ct. App. 1904)
  6. Hooven, Owens & Rentschler, Co. v. John Featherstone's Sons111 F. 81 (8th Cir. 1901)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Patrick v. Abeles, 27 Mo. 184 (1858) 10
Hempler v. Schneider, 17 Mo. 258 (1852) 9
Denny v. Eckelkamp, 30 Mo. 140 (1860) 6

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