Willer v. Bergenthal

Lvoitfj J. 1. It was held in Marsh v. Fraser, 27 Wis., 596, that an action to enforce a lien, brought under chapter 153, E. S. 1858, was an action at law. But the late revision (chapter 143) has entirely changed the character of the action, by removing therefrom nearly every feature of a legal action, and substituting therefor all of the essential characteristics of a suit in equity. The present statute denominates the action as one to foreclose a lien (section 3321), and the procedure to [478] judgment is very similar to that in an action to foreclose a mortgage. Eormerly, the creditor who first filed his lien obtained a priority over other lien creditors. Hall v. Hinckley; 32 Wis., 362. Now he does not. A subsequent lien creditor may be made a party to an action by a prior lien creditor, and share with him pro rata in the proceeds of the sale. R. S., secs. 3321, 3324 and 3325. Eormerly, also, a personal judgment went against the debtor in the first instance, and the lien was enforced by a sale on execution. Now, no personal judgment goes except for a deficiency to be ascertained by a sale, and no execution issues on the lien judgment. Section 3326, and sections above cited. The only feature of an action at law which seems to be retained in the present statute, is found in section 3323, which provides that “ any issue of fact in such action shall, on demand of either party, be tried by a jury, whose verdict thereon shall be conclusive as in other cases.” It is obvious that this provision does not make the action a legal one. In the present case no jury was demanded, and, although one was called, it decided nothing. All of the issues were determined by the court, and the case stands precisely as though no jury had been called. There was no error in this, because neither party demanded that any issue should be tried by a, jury, and it was competent, therefore, for the court.to determine the issues. 2. The undisputed evidence shows that the last item charged in the plaintiff’s account — “four wash-line posts ” — was delivered November 27, 1877, and that the same was used in the construction of the building. The plaintiff testifies to both facts and no witness disputes him. The petition for a lien was filed in the proper office May 6, 1878, less than six months after the last item in the account was furnished. This is proved by the petition itself, which was read in evidence, on which is indorsed the certificate of the proper clerk of the date of filing. The averment in the complaint that it was [479] filed about July 6, 1878, is amendable in that particular, or tbe variance between tbe averment and tbe proof may be disregarded. 3. It is proved, by a satisfactory preponderance of tbe evidence, that tbe appellant promised to pay tbe plaintiff for bis work and tbe materials be might furnish; that this promise was made before any portion of plaintiff’s account accrued, and that tbe work was done and tbe materials furnished by the plaintiff on tbe faith of such promise. Hence, tbe appellant is not (as counsel argued) a subcontractor, nor yet a surety for Herr, the original contractor for tbe erection' of the building. He is absolutely bound, as an original promisor or contractor, to pay tbe plaintiff for bis work and materials. 4. The omission of tbe circuit judge to file findings of fact, although an irregularity of practice, is not necessarily fatal to the judgment. On this appeal we must review tbe evidence; and having done so, and finding that it fully supports tbe judgment, there is no good reason why the judgment should not be sustained. It would seem an absurd practice to reverse this judgment for want of findings of fact, and remand tbe cause with directions to'the court below to find tbe material allegations of the complaint proved, and then to render precisely tbe same judgment which had been reversed. See Sanford v. McCreedy, 28 Wis., 103, and cases cited: Should this court, for any reason, deem it important to have the opinion of the trial judge on any given question of fact, of course it has the power, and would undoubtedly exercise it, to reverse for want of a finding. But there is no ground for any such proceeding in this case. The judgment itself discloses that the court must have found every material issue of fact in favor of the plaintiff. 5. We think the plaintiff was not required to prove the title of the appellant to the lot upon which the lien is claimed. The lien is enforced only upon the interest of the appellant therein, and, should it transpire that the latter has no such [480] interest, the plaintiff would take nothing by Ms judgment. That is a matter between the plaintiff and some possible adverse claimant of the lot, and does not concern the appellant. No' reason is perceived for requiring proof of appellant’s interest in the lot, in this action to foreclose a lien, which would not apply with equal force in actions to foreclose mortgages, where, as between mortgagor and mortgagee, no such proof is ever required. 6. The complaint states a cause of action, and the demurrer thereto was properly overruled. The only room for argument on this point is found in the fact that the date of the last charge in the plaintiff’s account is not given. Section 3322 provides that a complaint shall be sufficient if it sets forth certain facts, such date being one of them. But it does not provide that the complaint is bad if it omits such date. The complaint avers the filing of the petition within six months after the date of the last charge. This is the material fact. The failure to give the date may be ground for a motion to make the pleading more definite and certain, but the defect is not reached by a demurrer. The foregoing views dispose of all the errors assigned adversely to the appellant. By the Court. — The judgment of the circuit court is affirmed.