4 Wis. 451 | Wis. | 1856
By the Court,
This case is substantially like that of Dobbs vs. Green heretofore adjudicated by this court, and reported 2 Wis. Rep. 228, and of course must take the same direction, unless some sufficient reason is presented to invalidate that decision. None such has been offered, and the j udgment of the court below must be reversed.
But we have gone further, in this case, and have determined that no action lies to enforce a lien in behalf of a mechanic or material man, unless the petition for the lien is filed during the lifetime of the intestate or testator.
The lien is created by the filing of the petition. Unless this is done, creditors of this class, are placed in the same condition as they would otherwise occupy, in case chapter 120 of the Revised Statutes had not been enacted. See Rev. Stat. ch. 120, also Dobbs vs. Green, 2 Wis. Rep. 228.
The same fault in pleading is observable in this case, as in Dobbs vs. Oreen, before referred to.
Judgment of the court'below reversed, with costs, &c.