95 N.W. 152 | N.D. | 1903
The plaintiff instituted this action to recover a balance of $160.44, which he alleges is due to him for threshing defendant’s grain in the fall of 1900, and also to foreclose an alleged thresher’s lien securing the same. The answer interposed by the defendant placed the allegations of the complaint in issue, and also set up a counterclaim. The trial was to the court, without a jury. Judgment was entered in favor of plaintiff for $121.97 and costs, and for the foreclosure of his lien. Defendant has appealed from the judgment, and demands a review of the entire case in this court.
We have reached the conclusion, after a careful examination of the evidence, that the finding of the trial court in plaintiff’s favor that there is an unpaid balance due him of $121.97 is fully sustained by the evidence, and the judgment entered is therefore, to that extent, approved. We do not agree with the trial court, however, in his conclusion that the plaintiff has a thresher’s lien. On the contrary, we think the record shows the reverse. A thresher’s lien is purely of statutory origin, and one who claims such a lien must bring himself under the terms of the statute authorizing its creation; and in this case we are clear that the statement filed by the plaintiff for the purpose of perpetuating his lien was not such a statement as the statute requires shall be filed. The governing statute is embraced in sections 4823, 4824, Rev. Codes 1899. Section 4823 provides that “any owner or lessee of a threshing machine who threshes grain for another therewith shall, upon filing the statement provided for in the next section, have a lien upon such grain for the value of bis services in threshing the same from the date of the commencement of the threshing.” Section 4824 provides that “any person entitled to a lien under this chapter shall within thirty days after the threshing is completed, file in the office of the register of deeds of the county in which the grain was grown a statement in writing, verified by oath, showing the amount and quantity of grain threshed, the price agreed upon for threshing the same, the name of the person for whom the threshing was done and a description of the land
Plaintiff, having failed to file a statement complying with the-statute, cannot claim the benefits of the statutory lien, and the court was in error therefore, in finding that the balance due the plaintiff was secured by a lien, and awarding the foreclosure of the same.
The judgment, so far as it awards a recovery for $121.97, is approved, and will be affirmed. That part of the judgment, however, which awards a foreclosure of the alleged thresher’s lien, is reversed.. Neither party will recover costs upon this appeal.