Lang v. Menasha Paper Co.

119 Wis. 1 | Wis. | 1903

Cassoday, C. J.

It is claimed that the plaintiff is not entitled to a judgment for a lien in this action, for the reason that he failed to file his claim for a lien, as prescribed by the statute, until after the commencement of the action. Sec. 3321, Stats. 1898. That section authorizes “any person haying” filed a claim as prescribed by the previous sections to “foreclose the same by action.” Such filing of the claim is manifestly a condition precedent to the right to commence such foreclosure action. This is virtually conceded by counsel for the plaintiff. It is claimed, however, that it was so filed before the commencement of this action. It appears and is undisputed that a claim in due form, as required by the statute, duly signed by the attorneys for the plaintiff and petitioner, was sent to the clerk of the circuit court, with direction to file the same and send his bill therefor to such attorneys; that May 22, 1902, the clerk received such claim, and acknowledged the receipt thereof, as requested, by letter addressed to such attorneys, dated on the day and year last mentioned, and stating therein, in effect, that such “claim for a lien in favor of Robert A. Lang v. Menasha Paper Company” had been “duly received for filing,” and that the fee therefor was thirty-five cents; that the clerk made no demand for tbe payment of sucb fees, and tbe same were not paid until June 21, 1902; that sucb claim for a lien remained in tbe office of tbe clerk from, May 22, 1902, to tbe trial of tbe cause, July 10, 1902, but was not docketed by tbe clerk until June 21, 1902. Tbe statute requires tbe clerk to docket “eacb claim for lien filed witb bim immediately upon its filing.” Sec. 3319, Stats. 1898. In the language of our late Brother PiNNEY :■

“Tbe statute provides for both filing and docketing tbe claim, and these are entirely different things. Tbe law requires tbe party to file bis claim for a lien, and tbe clerk is to docket it.” Goodman v. Baerlocher, 88 Wis. 298, 60 N. W. 418.

Here tbe plaintiff delivered bis claim to the clerk to be filed in bis office. It was for tbe clerk to> put bis file mark upon it and to make tbe docket entries. Neither of these things could be done by tbe plaintiff, and tbe improper failure of tbe clerk to do them did not prevent tbe filing from being effectual. Id.; Bailey v. Costello, 94 Wis. 87, 91, 68 N. W. 663; State ex rel. Kaltenbach v. Shiel, 114 Wis. 255, 90 N. W. 112, and cases there cited. In legal contemplation, tbe claim was filed when it was presented to tbe clerk to be filed, and retained by him as sucb clerk. Id. True, tbe statute authorized tbe clerk to “require bis fees” for filing sucb claim “to be paid in advance.” Sec. 748, Stats. 1898. But be made no sucb requirement; and, in tbe absence of sucb requirement, bis duty was to put bis file mark upon tbe claim and docket tbe same. We must bold that tbe claim was filed May 22, 1902, within tbe meaning of tbe statutes.

2. It is conceded that tbe time for tbe performance of tbe contracts on tbe part of tbe plaintiff was not fixed or mentioned therein, but was left open and indefinite. It is, well settled that when no time is mentioned in an agreement for tbe performance thereof, a reasonable time is to be regarded as being within tbe contemplation of tbe parties. Waterman v. Dutton, 6 Wis. 265; Nudd v. Wells, 11 Wis. 407; Inter-Ocean T. Co. v. Sheriffs, 54 Wis. 202, 11 N. W. 480; Boyington v. Sweeney, 77 Wis. 55, 65, 45 N. W. 938, 941, and cases there cited. As stated by Mr. Justice Taylor in the case last cited: “What will in the particular case be a reasonable time depends upon the nature of the act to be done, the nature of the contract, and all the circumstances relating to the samein other words, it is largely a question of fact. The facts found by the trial court in the case at bar are amply supported by the evidence, and they fully justify the conclusions reached by that court.

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

SiebecKer, J., took no part.