50 Minn. 503 | Minn. | 1892
Action to foreclose a mechanic’s lien. According to the findings of fact and the settled case, defendant Knight was, March 30, 1889, the owner of the premises consisting of two-lots, (eleven and twelve.) Defendant Hurd was the contractor to-construct the buildings, and plaintiffs .sold to him the materials, the last item of which was furnished July 17,1889. June 3,1889, Knight-executed a mortgage on one of the lots to defendant Doten, and on the other to defendant Lovell. January 17, 1890, plaintiffs filed the . lien statement. June 2, 1890, each of the mortgages was foreclosed, the mortgagee in each instance being the purchaser, and there was-no redemption. June 17, 1890, the complaint in the action and a notice of lis pendens were filed, and July 28,1890, the summons waa served on defendants Knight and Hurd. No attempt was made to-serve on the defendants Doten and Lovell, except that, without any affidavit of nonresidence or return on the summons by the sheriff that said defendants were not found, the plaintiffs, under the supposition that the case came within 1878 G. S. ch. 81, § 28, caused the summons tobe published for six successive weeks; the first publication being July 19, 1890, and the last August 25, 1890. Those defendants were nonresidents,.and have not been within this state since-.the filing of the complaint, and no attempt to serve on them under 1878 G. S. ch. 66, was made till July 30, 1891.
But there was an attempt at service by publication under 1878 G.. S. ch. 81, § 28.
We think that section was wholly void under the decision in Bardwell v. Collins, 44 Minn. 97, (46 N. W. Rep. 315.) It is true that-decision was- on the ground that it is incompetent for the legislature to provide that mode of service on resident defendants, and the defendant in that case was a resident. But the section makes no distinction between residents and nonresidents. In terms, it applies equally to both. There is no reason to suppose the legislature would have enacted the section for the cases of nonresidents alone. On the.
There is no unity of interest between the legal owner of real estate and one claiming a lien on it through him, either by mortgage, mechanic’s lien, or otherwise, such as makes either the representative of the other in an action, so that service on one is equivalent to service on the other.
As to each defendant in an action, the action is commenced and is pending only from the time of service of the summons on him, or of his appearance without service; and, where each may object that the action was not commenced within the time limited by statute, its commencement as to his objection is to be determined by the time of service on him, and not by the time of service on some other defendant. This is a rule applicable to every action, and applies as well to actions to enforce mechanics’ liens as to any others. And any one who may defend against such a lien, who may show that for any reason it is not a lien as against his interest, may object that the lien had expired, or the remedy upon it been lost by lapse of time, before the action was commenced against him. This also is a rule applicable to every action. It amounts to just this: that when an action is commenced as to any defendant there must be an existing cause of action against him, and the right to a remedy upon it.
1878 Gr. S. ch. 90, § 7,%was not an ordinary statute of limitations limiting the time for commencing an action, but it put a limit to the life and duration of the lien, and it contains no exception to its operation, either because of nonresidence or for any other reason.
Order affirmed.
