63 P. 487 | Or. | 1901
delivered the opinion.
On November 20, 1895, the defendants Childers, intending to execute a mortgage to plaintiff upon certain land in Jackson County to secure the payment pf a promissory note for $550, by mutual mistake of the parties thereto1, made it upon another-and different tract. Thereafter, and between the eleventh day of August and the tenth day of November, 1896, the defendant Woods sold and delivered lumber to
The- statute provides that no mechanic’s lien shall bind any building for a longer period than six months after filing, unless suit be brought in a proper court within that time to enforce the same (Hill’s Ann. Laws, § 3675) ; that all persons personally liable and all mechanic’s lienholders shall, and all other persons interested in the matter in controversy or in the property sought to be charged with the lien may, be made parties, but such as are not made parties shall not be bound by such proceedings: Hill’s Ann. Laws, § 3677. The position of the plaintiff is that under the statute a mechanic’s lien lapses or becomes void, as against a junior mortgage or judgment lien, unless the lienholder is made a party-to a suit to enforce such lien, brought within the time specified in the statute. But the statute provides that the pleadings, process, practice, and other proceedings shall be the same as in other cases, and shall, as nearly as possible, be made to conform to- the proceedings of a foreclosure of a mortgage lien upon real property: Hill’s Ann. Laws, § 3677. The manifest purpose of these provisions is to assimilate the proceedings in a suit to foreclose a mechanic’s lien, as nearly as possible, to those in a suit to foreclose a mortgage upon real estate; and it is well settled that a suit to foreclose a mortgage can proceed to- final decree without the presence of other lien claimants, and that the absence of such parties from the record does not render the service a nullity. It is true, section 415 provides: “Any person having a lien subsequent to the plaintiff upon the same property or any part thereof * * * shall be made a defendant in the suit,” but this is only in order that a decree may be rendered which
Affirmed.