53 Minn. 252 | Minn. | 1893
Action to foreclose a mechanic's lien. The contest on this appeal is between Hammer, a lien-claiming defendant, and’ Corey, the owner defendant) who appeals from an order denying his motion for a new trial after a decision against him.
The appellant’s first point is that the plaintiff’s action was not commenced within a year after the date of the last item of his lien, and consequently no lien claimant could apjjear as defendant in the action, and assert his lien, although, when appearing, his lien was alive. The date of plaintiff’s last item was June 21, 1890. The complaint was filed, the notice of lis pendens filed for record, and the summons made out, June 20, 1891, though the latter was not delivered to the sheriff for service till August 14, 1891, and the summons was served on Corey, by publication, within sixty days thereafter. He filed an answer October 13, 1891. The date of Hammer’s last item was October 21, 1890, and he filed his answer July 6, 1891; so that when the action was commenced more than a year had elapsed since the date of plaintiff’s last item, and less than a year since the date of Hammer’s last item. That the plaintiff did not commence his action within the year did not go to the jurisdiction of the court. As soon as the summons was served'there was an action pending to enforce his lien, in which any lien claimant might present his claim of lien. That plaintiff’s action was not commenced within his year was matter of defense only; and certainly the claim of any defendant to a lien cannot be affected by any other party to the action succeeding or failing in his claim. Hammer having filed his answer within a year, and the court having acquired jurisdiction to determine liens, he was entitled to have his claim allowed, if established, although there was a defense to plaintiff’s claim.
The evidence was entirely insufficient to show Fairbanks’ authority such that his knowledge could be held the knowledge of Corey.
Order reversed.
(Opinion published 54 N. W. Hep. 1109.)
Application for reargument denied May 23, 1893.