Fredrickson v. Riebsam

72 Wis. 587 | Wis. | 1888

Cassoday, J.

1. The first ground of demurrer was properly overruled, because it nowhere appears upon “ the face of the complaint,” that there is any defect of parties plaintiff or defendant. Counsel speak of the plaintiffs suing as “a firm of subcontractors,” without the complaint making any “ allegations with reference to the principal contractor.” It is true the complaint makes no reference to any principal contractor not a party to this action. If it did, there might be some ground for urging that there is a defect of parties apparent upon the face of the complaint. Put we do not understand that it appears from the complaint that the plaintiffs are here suing as “a firm of subcontractors.” On the contrary, the allegations are to the effect that the materials were furnished and the work performed by the plaintiffs under and by virtue of a contract between them and the defendant personally, and not by virtue of a contract made by the plaintiffs and some third person as principal contractor with the defendant. The learned counsel for the defendant may be right in claiming that secs. 3321-3325, R. S., inclusive, contemplate the making of all lien claimants parties to such action. They are certainly proper parties ; and for the purposes of this case we shall assume that they are necessary parties. Still the defect of such omission is only available on demurrer when such defect appears upon the face of the complaint. Sec. 2649, R. S. When such defect does “ not appear upon the face of the complaint, the objection may be taken by answer.” Sec. 2653, R. S. When taken neither by demurrer nor answer, the defendant is deemed to have waived the same. Sec. 2654, R. S. But even when so waived, yet, if it appears upon the trial or otherwise that “a complete determination' of the controversy cannot be had without the presence of other parties,” or that “any persons not parties to the action have such interests in the subject matter of the controversy as require them to be made parties for their due protection, the court” is required to “order them to be brought in.” Sec. 2610, R. S. Such are the remedies prescribed by statute for defect of parties.

2. Does the complaint state facts sufficient to constitute a cause of action? Had it appeared in the complaint, as claimed by counsel, that the plaintiffs sued as subcontractors, then there might have been some ground for holding-tire same deficient in substance by reason of the failure ¡to allege that there was given to the owner of the property the requisite notice. Secs. 3315, 3322, R. S. But as already indicated, the plaintiffs have -sued as original contractors— notas subcontractors. The learned counsellor the defendant, however, goes further, and contends, in effect, that under secs. 3321-3325, R. S., inclusive, the presence of all lien claimants is a condition precedent to the maintenance of a suit to enforce such lien by any one of them; and that hence the complaint is defective in substance, for failing to allege that there were no other lien claimants except the plaintiffs. But we find nothing in any of those sections to support such conclusion. Assuming that there are other lien claimants besides the plaintiffs, and that they are necessary parties to this action, yet such necessity is not in order to, give the plaintiffs, as principal contractors, a cause of action and a lien upon the premises therefor against the defendant, but, as indicated, merely because such other lien claimants “ have such interests in the subject matter of the controversy as require them to be made parties for their due protection.” Besides, the statutes having specifically prescribed the method of raising the objection of the absence of necessary parties from the complaint, by demurrer when such omission appears upon the face thereof, and by answer or order of the court when it does not so appear, it would be a very strained construction of the statutes to hold that the same objection could also bo raised by general demurrer whenever the complaint, as here, is silent upon the subject.

By the Court.— The order of the circuit court is affirmed.