Mason v. Heyward

By the Oowt FlaNdrau, J. This is a motion on the part of the Plaintiffs to correct an error alleged to have been made by them in the entry of the judgment in this case in this Court. The motion was made in the early part of this Term and an order made allowing the amendment in a particular way, but on our attention being called subsequently to the order, it was discovered that from an imperfect statement of the facts having been furnished to the Court, we had supposed the case to have been dependent upon the lien act of August 12, 1858, when in fact it turned upon the act of March 20th, 1858. Upon this discovery being made, the motion was reargued upon a correct understanding of the facts. It is quite clear that the object of the action was to secure a lien upon the premises described in the complaint, as well as to determine and recover the amount of the demand, and we think the complaint contains facts sufficient for that purpose. The labor was performed and the materials furnished principally under the mechanics lien law of 1855, known as the Winona act, which act pending the performance of the labor and the furnishing materials was unconditionally repealed by [77] the act of March 20th, 1858. JPub. Stats. ¶. 696, See. 19. The lien of the Plaintiffs therefore must depend upon the latter act. This latter act gives a lien as well for “ claims for materials furnished or services rendered,” which accrued before, as after its passage, and the liens so given relate back to “ the time of the commencement of such services, or the furnishing of such materials.” The language of the act is “ That every dwelling house or other building, for the construction, erection or repairs of which any person shall have a claim for materials furnished or services rendered, shall, with the land,” &c.; “ b,e subject.” The words, “ shall have a claim,” mean and refer to the time of the passage of the act, and subsequently, and comprehend claims of such nature existing when the act was passed. As between the mechanic and his employer this retrospective operation of the act cannot become justly a subject of complaint. By an examination of the Judgment Roll it is clear that the Plaintiff was entitled to have his lien date back to the 10th of June, 1857, the time when the work, &c., was commenced, instead of June 15, 1858, as stated in the judgment entry made in this Court, which was, in fact, the date of filing the certificate with the Register of Deeds. Erom this circumstance and the facts stated in the affidavit used on this motion, it is evident that the date of the lien as stated in the judgment was a clerical error occasioned by confounding the date of filing the certificate with the date of the commencement of the work, &c., and as against the Defendant, we see no good reason why it should not be corrected. As the mistake, however, was the'act of the Plaintiffs, and has remained of record for a long period of time, the rights of third parties may have intervened, and as such parties if any are not represented in this motion, we think it our duty to refrain from expressing any opinion as to the effect the correction which we here allow may have upon such rights. The question of the proper practice under these lien laws has been discussed and considered in this motion, and as it is of interest to the bar that it should be settled, we think that the course pursued by the Plaintiff in this case of alleging in his complaint the facts which authorize the demand sued to be decreed a lien upon the specific premises, and then so deelar78 ing it in tbe decree or judgment, is tbe correct practice in sucb cases. The whole record is then in harmony, and the execution which is issued to enforce the decree can by proper recitals and commands instruct the officer clearly as to his duty in reaching the specific property. It is ordered, that the judgment entered in this case be so corrected that the sum for which the same is rendered be decreed and adjudged a lien upon the lands described in the complaint as against the Defendant from the tenth day of June, 1857, instead of the 15th day of June, 1858, as now declared therein.