ON MOTION FOR REHEARING. Two of the defendants in error, Paul Kerzel and Charles P. Koehler, have filed a motion for rehearing in which they earnestly question the correctness of our decision reversing the judgment of the circuit court in so far as it adjudged and provided for the enforcement of the several mechanic's liens against the property.
Their chief contention seems to be that in holding that their exclusive remedy was by cross-petition in the Imse-Schilling Sash and Door Company suit, and that Kerzel's subsequent suit was of no force and effect notwithstanding he had not been served with process in the Imse-Schilling Sash and Door Company suit at the time of the filing of his own petition, we have denied them due process of law as guaranteed *Page 970 by Article 2, Section 30, of the Constitution of Missouri, and have ruled contrary to the provisions of Sections 876-880, Revised Statutes Missouri 1939 (Mo. R.S.A., secs. 876-880), which have to do with the commencement of actions and the service of process upon defendants.
There is of course no question of our appellate jurisdiction, since the complaint goes only to our interpretation of the equitable mechanic's lien law, the constitutionality of which has not been challenged at any stage of the proceeding.
In considering the question of whether our decision constitutes a denial of due process, defendants in error mistakenly approach the question from the standpoint of the ordinary defendant who is to be charged with the result of the litigation brought against him by his adversary, and who must obviously be given notice and an opportunity to be heard in his defense before his rights may be affected by any judgment rendered against him. While it is true that as lien holders of record, Kerzel and Koehler were named as defendants in the Imse-Schilling Sash and Door Company suit, the matter they are complaining of is not one of a defense to such plaintiff's suit, but of the sufficiency of the remedy provided for the enforcement of their own liens, in which respect they too occupied the status of plaintiffs in the sense that they were asking affirmative relief for themselves. Whether they have been accorded due process must therefore be considered from the standpoint of the rights of one who seeks to maintain his own cause of action, as to whom it is only essential that he be afforded an adequate and appropriate remedy by a regular and orderly mode of procedure which will operate equally and uniformly upon all persons having claims within the class of cases to which his own belongs.
As we have interpreted the equitable mechanic's lien law, it afforded Kerzel and Koehler the identical remedy made available to each and every other lien claimant after the institution of an equitable suit, which was by cross-petition in such suit within the time otherwise fixed for the commencement of each one's individual action. If the Legislature had thought it advisable, it might have provided that until each lien claimant was served with process in the suit first filed, he might institute his own action, and later, when service was obtained upon him in the prior suit, take steps to have the two consolidated. However, the Legislature, in its discretion, saw fit to prescribe a different mode of procedure, and instead provided that after the institution of an equitable suit by the filing of the petition therein, no other or separate suit should be brought upon any mechanic's lien or claim against the property or any of it, but the rights of all persons should be adjusted, adjudicated, and enforced in such equitable suit, which was made the exclusive remedy. [Secs. 3573, 3574, 3576, supra.] Nor did the Legislature stop with the mere prohibition *Page 971 against the bringing of another or separate suit, but in recognition of the fact that summons might not be issued for a particular lien claimant within the period of ninety days in which his action was required to be commenced, it made express provision by section 3577 for his timely entry of appearance followed by pleading in due course, so as to avoid the bar of limitation.
As a matter of fact, the instant case furnishes an apt illustration of the distinction to be drawn between those who seek to enforce their rights, and those who are to be charged with the result of the litigation, as regards the basic conditions of due process. The Imse-Schilling Sash and Door Company suit was the exclusive remedy to be availed of by all the lien claimants for the enforcement of their liens, but the liens were not to be enforced except upon service duly obtained upon Viola Dawes, the owner of the property. Notwithstanding the fact that service was not obtained upon her in such suit, the liens were nevertheless adjudged against her property; and it is therefore idle to say that her substantial rights were not affected by the judgment.
It follows that the motion for rehearing should be overruled; and the Commissioner so recommends.