concurring.
I concur in the majority opinion upholding the right of relators to consolidate their contract action into the settled but as yet non-dismissed equitable mechanic’s lien action.
This concurring opinion is filed to point out that our intervention by mandamus is necessary because of a disturbing trend in the Missouri case law which appears to allow the destruction of a legitimate contract claim without notice or due process.
This trend apparently started with Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274 (1935). In that case an equitable mechanic’s lien proceeding had been filed pursuant to the predecessor of See. 429.270, RSMo 1978, by Boeckler Lumber Company. Richards Brick Co. was a named party to that suit. Following filing of the Boeckler suit, but prior to service of Richards, that company filed a mechanic’s lien suit involving the same property as the Boeckler suit. The appellate court held that pursuant to now Sec. 429.300 the institution of the Boeckler suit precluded the filing thereafter of Richards’ suit. The court pointed out that the legislature made provision for the equitable proceeding to allow adjudication in one suit of two or more mechanic’s liens sought to be enforced against the same property. The main issue decided in the case was whether the Boeckler’ suit was commenced prior to the Richards’ suit in view of the failure of process to issue before the Richards’ suit was filed. In holding that filing of the Boeekler’s suit “commenced” the action the court makes the interesting comment that if summons was not issued to Richards it was Richards’ duty as a named party to enter its appearance and plead within the statutory ninety day period. This comment was obviously limited to Richards as a lien claimant and was in recognition of constructive knowledge requirements imposed on parties whose claims arise from recorded notices.
In State ex rel. Great Lakes Steel Corp. v. Sartorius, 249 S.W.2d 853 (Mo. banc 1952) the exclusivity of the equitable mechanic’s lien proceeding was extended to a party named in the equitable suit who thereafter filed a non-lien contract action arising from the same transactions. The court, relying upon Richards Brick Co. v. Wright, supra, and Imse-Schilling Sash & Door Co. v. Kellems, 237 Mo.App. 960, 179 S.W.2d 910 (1944), imposed upon potential lien claimants the obligation to learn of the equitable suit and enter an appearance even if not served with process. This obligation was further extended to a non-party to the equitable suit, but that party was an *135officer of a lien claimant and apparently was viewed as having constructive knowledge of the equitable action.
In the Imse-Schilling case, relied upon in Great Lakes Steel, the court, in dealing with due process requirements upheld constructive notice to lien claimants because they could utilize the equitable remedy in the enforcement of their own liens. Great Lakes Steel did not limit its holding of constructive notice to those parties who had filed liens against the property.
In State ex rel. Clayton Greens Nursing Center, Inc. v. Marsh, 634 S.W.2d 462 (Mo. banc 1982) the court held that a contract action filed prior to the equitable lien action must be stayed pursuant to Sec. 429.300. There the plaintiff in the contract action was a named defendant in the equitable lien action. The dissent therein questioned the basic concept that the exclusivity of the equitable lien action applied at all to a claimant who sought only damages at law for breach of contract. Such a question is supported by the original analysis found in Richards Brick Co. v. Wright, supra, which impliedly at least recognized that imposition of liens against real estate involves questions of priority and possibilities of total liens exceeding the value of the real estate. There is a basis for assuring that interests against the same real estate be adjudicated in one action thereby avoiding inconsistent judgments or promoting a race to foreclose. It is difficult for me to see a comparable value in forcing claimants who assert no claim to an interest in the real estate into the law suit.
That aside, the cases heretofore discussed all involved claimants who had filed notices of lien prior to the institution of the equitable lien suit and who were named parties in that suit. The broad language used, however, did not limit the applicability of the exclusivity statute to those situations. As a result in State ex rel. Power Process Piping, Inc. v. Dalton, 681 S.W.2d 514 (Mo.App.1984) we applied the exclusivity doctrine to a contract claim by a non-lien claimant who was not a named party in the equitable proceeding. In upholding the right of that claimant to intervene we stated “The Kolb lien suit is the only forum in which they are entitled to litigate their claims. Absent express statutory language abrogating the contractual claims of relators against the property owners, rela-tors as separate prime contractors are entitled to intervene and litigate their claims in this case, the only available forum under the circumstances of this case.” (Emphasis supplied) By footnote we did state we were not deciding whether a separate contract suit was barred where the claimant was not informed of the lien suit or where it had been terminated before the contract suit was filed or where the property owner does not seek dismissal of the contract suit.
It is by no means clear to me that in the present posture of the Missouri law a claimant in a contract action or with a non-filed contract claim is protected from the bar of an equitable lien judgment because of lack of notice. The language of the cases seems to imply an affirmative duty of such claimant to determine the existence of such actions. Great Lakes Steel, supra. Although Sec. 429.190 would appear to limit the effect of a judgment in the equitable action to those who have been made parties, the cases do not appear to so limit the impact. Great Lakes Steel, supra; Power Process Piping, Inc., supra. Once it is decided that the equitable lien statute applies equally to lien and non-lien claimants it becomes unclear whether the affirmative duty requirements of Great Lakes Steel and Imse-Schilling apply equally to both types of claimants.
Minimal due process should require that before the equitable lien suit can serve as a bar to a non-lien claimant, he should be joined as a party and notified of the existence of the suit and its impact on him. Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946); Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The burden of such join-der should be upon the property owner or other party which reaps the benefit of the *136bar from the equitable lien judgment. It is one thing to place upon a claimant who seeks to impress a lien upon real estate, and who must record such intention as a public record, the affirmative duty to consult the public records to implement his lien lest he lose it. It is quite another to place such a duty upon a claimant who seeks only a common law damage award against the other party to his contract, who may in fact have no interest in the real estate. In the lien action the time constraints and precise venue of the lien action do not make such duty unduly burdensome. But the common law contract action is not burdened by such limited time constraints or venue. And in fact the common law claimant, including a geographically removed supplier, may not even be aware that the material or labor he supplied was utilized in the project which is subject to the equitable lien proceeding. It is not difficult to construct a chamber of horrors under a constructive notice format.
Here Carafiol did not, as far as the record reflects, make any attempt to notify relators of the pending equitable action until that suit had reached a point where Carafiol believed it was no longer pending and constituted a bar. That it was mistaken, as this court now holds, has saved the relators. Whether dismissal of the equitable lien suit prior to relators’ attempt to consolidate or intervene would have invoked the exclusivity bar is not clear under the law. In that posture our writ becomes a necessity to protect the relators’ rights. I therefore concur.