34 Minn. 403 | Minn. | 1886
Action to foreclose a lien claimed for material sold and delivered to a contractor in constructing a house for defendant Smith. Judgment having been entered by default, the court below, on motion of defendant Smith, set it aside as to him, on the ground, in effect, that the complaint does not show that plaintiff had a lien when the action was commenced.
A complaint in an action to enforce a mechanic’s lien must, of course, (as in any other action,) state facts sufficient to constitute a cause of action, — must, by its allegations of fact, show plaintiff entitled to judgment.
The objection to this complaint is that it does not show that the affidavit and account required by the statute were filed for record in time to preserve the lien. The time prescribed by the statute (Gen. St. 1878, c. 90, § 6,) is 60 days after the time of furnishing the material. To the complaint is attached a bill of particulars, referred to in the complaint, of the materials furnished. In this are 30 items under 13 different dates; the first date being February 14th, the next to the last March 18th, and the last June 4th. The affidavit and account were filed for record August 4th, (Monday.) So that the date of the last item is 78 days after the date of all the other items, and the date of filing the affidavit and account 138 days after all the items but the last. Assuming that the time for filing the affidavit and account began to run June 4th, then, computing the time
The proposition on which the court below appears to have held the complaint bad is that the right to a lien as to all the items prior to the last had expired before that item was furnished, and that the furnishing of that item could not revive the right to a lien for the others, — a proposition entirely correct, if that item and the others are, under the allegations of the complaint, to be taken as wholly independent of each other; for it would be unreasonable that a material-man, after his lien has expired, should be able to restore it by a subsequent independent transaction,— one having no connection with, and being no part of, the transaction out of which his right to a lien arose. Where a lien is claimed for different items, delivered at different times, the right is not necessarily a right to an independent lien for each item furnished. If it weré, and it were necessary for the material-man' to proceed separately for each item in perhaps a long line of items delivered at different times, the right would in many cases be of very little value. A great many different items may be delivered at different times, and there be but one lien, including all of them. In such case the time for filing the affidavit and account begins to run from the time when the delivery was completed, that is, when the last item was delivered; and in such case it is no objection to any item that it was delivered .a longer time before the filing than is specified in the statute for the filing; for the whole account is treated as a unit. And this is usually the case where the articles are delivered, though at different times, under one contract for the same general purpose, — as for the purpose of constructing a building, or for the purpose of repairing it, — but would not be the case when furnished for different purposes, as at one time for constructing, and at another time for repairing. Phil. Mech. Liens, §§ 229, 230.
The question here is, does it appear from the complaint that all the items, including the last, belong to the same account, so that
Order reversed.