213 Wis. 517 | Wis. | 1934
Plaintiff’s complaint states facts sufficient, to constitute a cause of action to recover for architectural services performed by him for the defendant Congregation. The prayer of the complaint is for a lien under ch. 289, Stats., upon the premises upon which the building was erected. However, that' complaint was not served or filed until on February 4, 1933, which was more than a year after November 13, 1931, the date of the last charge for plaintiff’s services; and no affidavit had ever been filed, as authorized by sec. 289.06, Stats. 1931, to enlarge the time for filing a complaint. Because of plaintiff’s failure in those respects the defendant Congregation moved to dismiss the action, and from an order to that effect plaintiff appealed. The Western and Southern Life Insurance Company was joined, as a defendant merely because it was alleged to have a mortgage lien upon the premises. That defendant did not participate in the motion to dismiss or on this appeal.
Sec. 289.06, Stats. 1931, so far as here material, provides: “No lien hereby given shall exist and no action to
From and after November 13, 1932, there existed no right to a lien under ch. 289, Stats., which can be deemed to
Although the usual rules in equitable proceedings are applicable in many respects in actions to enforce liens under ch. 289, positive legislative enactments prescribing the conditions essential to the existence and preservation of a statutory lien cannot be disregarded. Consequently, as sec. 289.06 expressly provided that no lien under ch. 289, Stats,, shall exist, and no action to enforce the same shall be maintained, unless the complaint was served and filed within that period o,f one year, or a year thereafter if the time therefor was duly enlarged, the court rightly concluded that, after the expiration of that year, the plaintiff could not establish such a lien upon the premises. By reason of his failure in that respect he may not have been entitled to any relief ¿¡.gainst the defendant Western and Southern Life Insurance Company. However, the íacts alleged in his complaint, if.established on
By the Court. — Order reversed.