Shaw v. Allen

24 Wis. 563 | Wis. | 1869

Cole, J.

We are really unable to see how the appellants were prejudiced by the order of the court refusing anew trial. The jury say they “agree on a verdict for the plaintiffs.” Now what judgment will such a verdict authorize % Manifestly only a judgment for the cause of action stated in the complaint. But what is that 'cause of action ? It has been assumed that it was for a’mechanic’s lien upon the interest of James D. Fisk in certain mill property. It is alleged that certain materials were furnished him by the plaintiffs, which were used by him “in the erection, construction and completion and repairing of the mill premises described in paper B,” annexed to the complaint. So the proceeding is one for enforcing a lien upon the ground that Fisk Was owner, or part owner, of the property. But it is not even alleged in the complaint that Fisk had any interest whatever in the mill premises. It is true that, in the prayer for judgment, it is asked that judgment be rendered for the amount claimed, naming the amount, “and that the same be declared a lien upon the said saw-mill building, and upon all the right, title and interest of the said defendant Fisk in said described land, upon the day of the commencement of said labor,” etc. This is the only matter stated in the complaint to show that James D. Fisk had any right, title or ownership in the mill property. And the question is, Will such a complaint support a judgment for a mechanic’s hen ? It seems to us not. A suit to enforce a mechanic’ s hen, and to charge the estate with an incumbrance, is in the nature of a proceeding in rem, as well as of a personal action. The complaint, therefore, should contain some description of the property to be charged with the lien. .It should further contain, where the materials furnished, or labor performed, are on account of the owner, an allegation that such person has an interest in the property to be charged. It seems to us that such allegations are essential in the complaint, in order to support a proper judgment. We do not think the defect in the complaint in these particulars was cured by a reference to the petition. The complaint ought to contain a cause of action independently of the petition. And as it did not, in this case, we do not think any judgment for a mechanic’s lien could be rendered upon the verdict. Consequently, as there was no cause of action stated in the complaint which could aifect the appellants in any way, they could not be prejudiced by the order refusing a new trial.

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