Sherry v. Schraage

Tatloe, J. The case presents the question of the power of the court to direct an amendment of a petition for a lien, in the matter of the description of the property upon which the lien is claimed, when a mistake in such description has been made in such petition, and in a case where no rights are to be affected except those of the defendant. The court below denied the right absolutely and without qualification. This question has been twice before this court (Brown v. La Crosse Gas Light Co., 16 Wis., 555, and McCoy v. Quick, 30 Wis., 521); but in both cases the judgment of this court went upon other grounds, and left this question undecided. In Witte v. Meyer, 11 Wis., 296, this court decided that the petition was a “proceeding” to continue and enforce a lien, and therefore came within the statute of amendments, and that an amendment of the petition as to the name of the petitioner was allowable. In 1869 the legislature passed an act expressly allowing the petition in a lien case to be amended as to the name of the owner, where the real owner was the husband or wife of the .party described in the petition and action; and the revision of 1878, which was in force when this action was tried, expressly provides that after action commenced in a lien case, the petition may be amended, by order of the court, in the same man [97] ner as pleadings in the action. See section 3320, R. S. 1878. And this provision of the revision was undoubtedly applicable to this case under the provisions of section 4980. The legislative action upon this subject clearly indicates that a liberal rule should be applied to actions of this kind for the purpose of preserving the rights of the claimant for a lien. The filing of the petition is, in the language of the court in the case of Witte v. Meyer, supra, a “ proceeding ” to continue the lien. The lien is not created by the filing of such petition, but by the fact of doing the work or furnishing the materials in the construction of the building to which the lien attaches. The filing of the petition within a limited time is mainly for the purpose of giving notice to third persons who, without such notice, might be inclined to take other liens upon the property or to pirrchase the same. It is undoubtedly true that, as the right of lien and the manner of enforcing the same are purely statutory, the neglect of the plaintiff to file his petition within the time prescribed would be fatal to his right to enforce it; but when he has in good faith filed his petition within the time prescribed by law, and by mistake has failed to file a perfect petition, as against all persons who have not acquired vested rights by reason of the want of such perfect petition, it would seem but a just exercise of the powers of the court to permit such petition to be amended so as to make the record perfect. The defendant knew, when he purchased the lumber and used it in the erection of his building, that the law gave his vendor a lien upon his building, and the lands on which it was situated, for the value of the same, and that such lien would continue for one year, and no longer, unless within the year an action for the recovery of the purchase price was commenced for the enforcement of such lien. In this case the action was commenced within the year, and a petition was filed within the six months prescribed by [98] the statute. There can be no pretense, therefore, that the defendant has been misled by the action of the plaintiff. The petition, though imperfect, was notice to him that the plaintiff was intending to enforce his lien. He knew, by the other matters contained in such petition, that the plaintiff intended to continue his lien upon the store building and the lands on which it was situated, notwithstanding the misdescription therein. The rights of do other parties intervening, there does not appear to be any good reason for refusing the amendment as prayed for by the plaintiff in his complaint, and enforcing his lien by the judgment of the court. We are clearly of the opinion that the amendment in this case would, under the circumstances disclosed, have been in furtherance of justice, and should have been allowed by the court. The judgment of the court below having expressly denied the plaintiff’s right to amend his petition for alien, and denied him a judgment declaring his claim a lien upon the property described in the complaint, the better practice for the appellant would have been to appeal from that part of the judgment denying his light of amendment and alien judgment, instead of from the whole judgment. The jiersonal judgment in favor of the appellant is clearly not erroneous, as such judgment would be entered in his favor although a judgment declaring the same a lien upon the premises described in the complaint had also been entered in his favor. The plaintiff having appealed from the whole judgment, that part of the judgment of the circuit court which adjudges that the plaintiff recover of the defendant the sum of $353.80 with $44.37 costs, must be affirmed, and that part which denies the plaintiff the right to amend his petition for a lien, and denies a judgment lien against the premises described in the complaint, reversed; and the cause must be remanded with directions to allow the amendment and enter judgment in favor of the plaintiff establishing his lien, and for the enforcement thereof, as prayed in his complaint. [99] The judgment being affirmed in part and reversed in part, the costs on this appeal, under the provisions of section 2949, E. S. 1878, are in the discretion of the court. As it does not appear that the respondent has been in any way prejudiced by the appeal from that part of the judgment which is affirmed, we think the appellant should have costs. By the Gourt.— Ordered accordingly.