Pittsburg Plate Glass Co. v. Peper

Missouri Court of Appeals

Pittsburg Plate Glass Co. v. Peper

70 S.W. 910, 96 Mo. App. 595, 1902 Mo. App. LEXIS 173

CourtMissouri Court of Appeals

DecidedNovember 25, 1902

StatusPublished

Cited by9 cases

This text of 70 S.W. 910 (Pittsburg Plate Glass Co. v. Peper) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pittsburg Plate Glass Co. v. Peper, 70 S.W. 910, 96 Mo. App. 595, 1902 Mo. App. LEXIS 173 (Mo. Ct. App. 1902).

Pincite

Opinion

BARCLAY, J

This is an action to enforce a mechanic’s lien. The plaintiff is the. Pittsburg Plate Class Company, a corporation. The defendants are Christian Peper, Josh Lowis, Josh Lowis Painting Company and Henry F. Beinke. The first-named defendant is alleged to be the owner of the land to which the lien is sought to be affixed. The other defendants are charged to be the principal and subcontractors for the erection of a building on Mr. Peper’s land whereto plaintiff’s materials were furnished, in circumstances which plaintiff contends entitle it to a mechanic’s lien. The defendant Mr. Peper demurred [597]*597to the petition. The other defendants answered by general denials, except Mr. Beinke who was not served with process. The demurrer was sustained. Plaintiff declined to plead further and judgment was rendered for Mr. Peper, defendant. The plaintiff’s action was dismissed for want of prosecution as to the other defendants. Later, on stipulation, the cause was reinstated as to the defendants who had answered'. In that condition of the record plaintiff sued out the writ of error upon which it is now sought to review the ruling sustaining the demurrer. The writ is premature. The cause is yet pending and undisposed of, as to the defendants who answered. There should be but one final judgment in a cause of this nature. R. S. 1899, :sec. 773; Estes v. Fry, 166 Mo. 70. A mechanic’s lien action is governed by the general code of practice except in those particulars for which other provisions are made by the statute regulating procedure in actions •of that sort. R. S. 1899, sec. 4246.

A writ of error requires a final judgment to support it. R. S. 1899, sec. 835. In the exceptional classes of cases wherein a review is permitted without a final, judgment, the prescribed mode of review is appeal, not error. R. S. 1899, sec. 806. This case ■does not come within any of those classes, however, so we need not pursue that topic further.

The identical point involved in the case at bar has been determined by at least three decisions of the Courts of Appeals, following which we should dismiss the writ of error. Sater v. Hunt, 61 Mo. App.(St. L.) 228; Webb v. Kansas City, 85 Mo. App. (K. C.) 148; McVey v. Barker, 88 Mo. App. (St. L.) 513.

The writ of error is dismissed.

Bland, P. J., and •Goode, J., concur.

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BARCLAY, J

This is an action to enforce a mechanic’s lien. The plaintiff is the. Pittsburg Plate Class Company, a corporation. The defendants are Christian Peper, Josh Lowis, Josh Lowis Painting Company and Henry F. Beinke. The first-named defendant is alleged to be the owner of the land to which the lien is sought to be affixed. The other defendants are charged to be the principal and subcontractors for the erection of a building on Mr. Peper’s land whereto plaintiff’s materials were furnished, in circumstances which plaintiff contends entitle it to a mechanic’s lien. The defendant Mr. Peper demurred [597]*597to the petition. The other defendants answered by general denials, except Mr. Beinke who was not served with process. The demurrer was sustained. Plaintiff declined to plead further and judgment was rendered for Mr. Peper, defendant. The plaintiff’s action was dismissed for want of prosecution as to the other defendants. Later, on stipulation, the cause was reinstated as to the defendants who had answered'. In that condition of the record plaintiff sued out the writ of error upon which it is now sought to review the ruling sustaining the demurrer. The writ is premature. The cause is yet pending and undisposed of, as to the defendants who answered. There should be but one final judgment in a cause of this nature. R. S. 1899, :sec. 773; Estes v. Fry, 166 Mo. 70. A mechanic’s lien action is governed by the general code of practice except in those particulars for which other provisions are made by the statute regulating procedure in actions •of that sort. R. S. 1899, sec. 4246.

A writ of error requires a final judgment to support it. R. S. 1899, sec. 835. In the exceptional classes of cases wherein a review is permitted without a final, judgment, the prescribed mode of review is appeal, not error. R. S. 1899, sec. 806. This case ■does not come within any of those classes, however, so we need not pursue that topic further.

The identical point involved in the case at bar has been determined by at least three decisions of the Courts of Appeals, following which we should dismiss the writ of error. Sater v. Hunt, 61 Mo. App.(St. L.) 228; Webb v. Kansas City, 85 Mo. App. (K. C.) 148; McVey v. Barker, 88 Mo. App. (St. L.) 513.

The writ of error is dismissed.

Bland, P. J., and •Goode, J., concur.

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70 S.W. 910, 96 Mo. App. 595, 1902 Mo. App. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittsburg-plate-glass-co-v-peper-moctapp-1902.

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