Missouri Granitoid Co. v. George

REYNOLDS, P. J.

(after stating the facts. — The action of the learned trial judge in dismissing the case on the grounds stated in the motion to dismiss was evidently taken inadvertently and was properly set aside by him.

Our statute, section 6519, chapter 91, article 22, Revised Statutes 1899, now section 7617, chapter .65, article 9, Revised Statutes 1909, provides that justices of the peace in cities with 300,000 inhabitants or over “shall have jurisdiction in all actions brought to enforce mechanics’ liens, as provided by law for enforcing such liens in the circuit court, when the amount of balance claimed to be due does not exceed $500,’’ and that “all existing provisions of law now applicable to justices of the peace and the practice and procedure *656 in their eonrts shall be applicable in all respects to the justices elected under this article.” Clearly then they are vested with jurisdiction over the cause of action, to-wit, the enforcement of a mechanic’s lien. Section 3893, Revised Statutes 1899, now section 7751, Revised Statutes 1909', requiring a notice of the time when and justice before whom the action is to be brought, is therefore applicable to actions before justices of the peace to enforce mechanics’ liens in the city of St. Louis.

It has been held by this court in McDonald v. Nicholson, 67 Mo. App. 415 , that it is sufficient, in a suit to enforce a mechanic’s lien, that the statement or petition is actually filed within the time prescribed in the notice and with the justice named therein. This we hold to be the correct rule. It is true that our court, interpreting section 3850, Revised Statutes 1899*, section 7410, R. S. 1900, has held, in several cases, that an action is said to have been commenced before the justice at the time of issue of the summons to the constable. [Heman v. Larkin, 99 Mo. App. 294 ; 73 S. W. 218 ; Hornsby v. Stevens, 65 Mo. App. 185 ; Rosenthal v. Windensohler, 115 Mo. App. 257 ; 91 S. W. 432 ; Fabien v. Grabow, 134 Mo. App. 193 ; 114 S. W. 80 .] Hornsby v. Stevens was an action to recover the value of services. In the Fabien case, which was on a mechanic’s lien, and which referred approvingly to the Hornsby case, the precise point here at issue was not in judgment. Rosenthal v. Windensohler was a suit by attachment. Heman v. Larkin was on a special taxbill. These eases correctly interpret the law applicable to cases generally. We do not think that the same interpretation should he applied to cases instituted under the mechanics’ lien law before justices of the peace. Notwithstanding what is said in these other cases on this point, we reiterate and follow what is held in MoDonalcl v. Nicholson, supra, as applicable to suits instituted before a justice to enforce a mechanic’s lien. *657 Statutes are not to be construed so as to pervert the very object aimed at. It is obvious that the object of requiring that notice of when and where a mechanic’s lien suit was to be instituted, should be lodged somewhere of record, accessible to the public and parties examining-titles to real estate, when the action is to be before a justice of the peace, was to enable such parties to follow up the steps taken in the action. There are many justices, especially in large cities. To require an eye to be kept on their dockets to ascertain what cases are there pending, affecting titles to realty would be unreasonable. Hence the lien notice must be filed with the clerk of the circuit court with whom the lien claim is filed, to enable the interested public to follow up all proceedings under the lien. [Ewing v. Donnelly, 20 Mo. App. 6 .] The searcher can then resort to the office of the justice named, on or after the day named, to ascertain if action has been there commenced; to see if a statement seeking enforcement of the lien against the property has been filed. That is all that concerns him. When he has knowledge of this, the object aimed at by the statute is accomplished. The” defendants are not concerned in this. The notice filed with the circuit court does not bring them into court. They are only in court by service of summons or voluntary appearance. The rights of a claimant to the lien are-not to be lost because the justice delays in issuing the summons and passing it on to the constable in due time, or because wrong dates are given, or endorsements entirely omitted; such a construction wóuld pervert the very object of the law.

Whether the petition was filed in time was not a matter to be shown by the transcript and surely the transcript was not conclusive as to that fact. As was said in Fabien v. Grabow, supra, l. c. 198, “Justices of the peace are required to make certain entries on their dockets (R. S. 1899, sec. 3844)', and are also re *658 quired, when appeals are taken, to file in the office of the clerk' of the circuit court having appellate jurisdiction, a transcript of all entries on their dockets relating to the eases appealed, together with the process and other papers. [R. S. 1899, sec. 4069.] Their docket entries are evidence of the facts they are required to record, and of no others. [Brown v. Pearson, 8 Mo. 159 ; Farmer v. Hunter, Id. 512; Heman v. Larkin, 99 Mo. App. 294 ; Carpenter v. Roth, 192 Mo. 652 .] We know of no statute which requires a justice of the peace in any case, to recite in his docket the time the petition is filed. His entries in his docket of the time of issue or delivery of the writ are not evidence of that fact. [Heman v. Larkin, supra, l. c. 299.] It was his. duty to find that the petition was filed within the time specified in the notice; but that was a question of fact like any other fact in the case, to be tried de novo■ upon appeal to the circuit court. While it is the better practice to set out the fact of filing the notice required by section 3892, in the statement filed with the justice, as was done in the case at bar, it is not necessary that this' be done. [Wissman v. Meagher, 115 Mo. App. 82 , l. c. 87, 91 S. W. 448 .] Being a fact not required to be shown on the record, it could be shown only by evidence aliunde to be produced by the party bound to. show jurisdiction. Again quoting- from the Fabien case, supra: “An issue was raised in the circuit court as to this matter, and thereby said court was called on to find the truth; being neither bound by the recital in the justice’s transcript, nor allowed to consider the recital as evidence. It was hearsay; for writing it on the docket was gratuitous and not done in obedience to law.”

Granting that by the entry made by the justice before whom the suit was instituted, he means to recite that it was docketed by him the 10th of January, our court has held in the Heman Case, supra, that this entry may be impeached, citing Gott v. Williams, 29 *659 Mo. 461 . Our Supreme Court has held in the ease of Grubbs et al. v. Cones et al., 57 Mo. 83 , that an endorsement required to be made by the clerk when he receives a paper does not constitute the filing of that paper; that the filing is the actual delivery of the paper _to the clerk without regard to any action that he may take thereon. “If the clerk commits a clerical error, or makes a mistake in reference to the time at which he received the paper, that will not make any difference. He may .endorse upon it the wrong date or an impossible date and still the real date of the filing will be the same.” • It is further held in that case that while the endorsement by the clerk will be prima facie evidence of the date, it is competent to show that he erred in the matter of the date. We see no reason why this does not apply even to. those entries required to be made by the justice. As was also held in the Fabien case, the file marks on the notice of the suit itself and the summons do not prove the essential fact that the notice was filed before a summons passed to the constable.

It follows that the docket entries and recitals, including the judgment, were not conclusive or even prima facie evidence of whether the petition or statement was filed within the time specified in the notice, and the circuit court was right in' setting aside its order dismissing the action and reinstating the case, so that respondent may prove, if it can by evidence aliunde, that it has duly filed with the circuit clerk the notice required by section 3895, Eevised Statutes, 1899, and that it filed its petition or statement with the justice within the time specified in said notice. If, it is. within the power of the plaintiff here to prove that, the statement was in fact filed with the justice named, on the date named in the notice filed, it should be allowed to do so. If it establishes that fact, then it should not be defeated in its claim by any error, mistake or oversight of the justice or constable. The cru *660 cial fact in a suit to enforce a mechanic’s lien before a justice'of the peace, is, when was the statement lodged with him for filing and docketing? His failure to file or docket at the time when the statement is lodged with him, and to thereupon issue process, if one is required, should prejudice no one.

The judgment of the circuit court in setting aside, the dismissal and reinstating the case is affirmed, and the cause remanded to the circuit court for further proceedings in due course of law.

Nortoni, J., and Caulfield, J., concur.