204 N.W. 51 | Minn. | 1925
The defense upon which appellants rely is that the right to foreclose was lost because respondent failed to assert his lien by filing his answer within one year after the date of the last item in the lien statement. We think the defense is good. Sections 8500 and 8501, G.S. 1923, as construed by this court, present an insuperable obstacle to the successful enforcement of the lien. The pleadings in proceedings to enforce mechanics' liens must be filed, not served. The statute so provides and this court has so held. Bauman v. Metzger,
Respondent's failure thus to assert his lien was fatal. Conceding, for the sake of the argument, that after the year expired appellants could waive their right to defeat the enforcement of the lien, they did nothing which amounts to a waiver. They were not parties to the stipulation and were not notified of the application for the order which followed. Moreover, the statute puts an end to the life and duration of the lien at the expiration of the year within which it may be enforced, hence neither the stipulation nor the order could *377
revive it. Smith v. Hurd,
The answer of a lienholder, joined as a defendant pursuant to section 8500, is the equivalent of a cross complaint. In addition to all other matters which may properly be pleaded, it must set up the lien claimed by the defendant and demand the enforcement thereof. All whose liens arise out of the same improvement must foreclose their liens in one action. Any individual lien claimant may commence the action, but once an action is commenced all the other claimants must answer therein and each must make the action his own for the purpose of enforcing his lien. Gale-Gunner Lbr. Co. v. Melin Bros.
In Burns v. Phinney,
The service of the answer on the attorney for the Olson
Serley Company amounted to nothing; the filing of the answer is the essential thing. Filing it is a substitute for the service of the summons when an action to foreclose is commenced. It keeps the lien alive whether the plaintiff's action was begun in time or not and whether the plaintiff prevails or is defeated. Sandberg v. Palm,
The undisputed facts preclude respondent from enforcing his lien. It expired on November 27, 1923, before the filing of the answer by which respondent sought to enforce it.
The order denying a new trial is reversed and the case remanded with direction to strike out that portion of the conclusions of law *378 which directs that the personal judgment against defendant Edward Juckem shall be a specific lien upon the property enforceable by a sale thereof.
Order reversed.