Matlack v. Lare

32 Mo. 262

• Court: Supreme Court of Missouri
• Decided: March 15, 1862
• Status: Published

Opinion

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 judgment, and to enable them to do so we shall remand the cause.

Judgment reversed and cause remanded,

the other judges concurring.