| Minn. | Jul 15, 1861
By the Court.
'The Plaintiff having a claim against Defendant Greeley, amounting to something over 02,600, for worlc done and materials furnished in the erection of a building on the premises described in the complaint, brings his action therefor, and asks to have the same declared a lien upon the building and premises, from the time the work was commenced. Bernheimer the other Defendant has a mortgage lien upon the same property for some $5,000 and interest, and he is made a party for the purpose of determining the priority of liens. The work on the building was commenced May 11,1857 and the building completed October 27,1857. Bernheimer’s mortgage was recorded June 24, 1857.
Under the law in force at the time the Plaintiff’s claim originated, (act of March 10, 1855,) it was necessary for the mechanic,, in order to perfect and continue his lien longer than a year from the time of furnishing materials and performing labor on the building, to file within such year in the County or Circuit Court [District Court of the County] a petition or claim for the same, containing a brief statement of the contract or demand on whieh the 'claim was founded, the amount due thereon, and description of the premises, etc.,
Before any such petition or claim was filed in this case the law was unconditionally repealed by the act of March 20, 1858, and this latter act provided that the claim of a mechanic for labor, etc., in the erection of a building, should not remain a lien for a longer period than sixty days after the labor was performed or materials furnished, unless a certificate in writing, describing the premises, the amount claimed as a lien thereon, and the date of the commencement of the claim, were lodged with the Register of Deeds, of the County where the building was situated. Com. Stat. 695, Sections 14 and 15.
Nothing was done by the Plaintiff towards filing the certificate required by this act.
The act of August 12, 1858, Com. Stat. 696, was soon after-wards passed, which made provision for creating liens, as well for labor performed and materials furnished prior to its passage, as for that which should be performed or furnished after-wards, (Sec. 1,) provided the person entitled to such a lien, made and swore to an account in writing, of the items of labor, materials, etc., furnished, within a year after furnishing the same, and filed said account in the ofiice of the Register of Deeds. It further provided (Sec. 17,) that in all cases where liens liave been filed under pre-existing laws, the same may be prosecuted to final judgment under such laws, and in all cases where the right to liens have accrued, as provided by this act, the same may be prosecuted in accordance with its-provisons.
The Plaintiff, as before óbserved, did not, while the act of March 3,1855, was in force, comply with its provisions, by', filing his claim or petition in the District Court, and to do so after the act was repealed would not aid him, for there was no law in existence requiring, or permitting such a course. Nor did he, while the act of March 20, 1858, was in force, and unaffected by subsequent legislation, lodge with the Register of Deeds of the County, the certificate required by that act, or any certificate. He cannot therefore, rightfully claim to have “ filed his lien” under any pre-existing law.
Upon this state of facts the conclusion is irresistable, that the plaintiff has not 'complied with the August law so as to entitle him to a lien as demanded in his complaint. And it follows necessarily that the lien of Bernheimer’s mortgage is not affected by the claim of the Plaintiff.
We might have determined this action upon the authority of the decision in Mason & Craig vs. Bailey and Gilman, 4 Minn. 546, but as the Court below decided it upon the ground above stated, in which we fully concur, we have not thought it necessary to predicate our affirmance upon any other.
We think however that the Plaintiff is entitled to a judgment against the Defendant 'Greely for the amount found by the Judge to be due, as a part of the general relief demanded in the complaint, although such judgment is not specially asked in the complaint as amended. The party ought not to be driven to another action to recover the debt of Greely when he does not deny the facts stated in the complaint, and the amount has been fully ascertained by the finding of the Court in this action. We will therefore affirm the judgment as to the denial of a lien, and as to the Defendant Bernhei-mer, and remand the case as to the Defendant Greeley, with directions to enter a judgment against him, for the amount found by the Court to be due.