Keller v. Tracy

Lowe, C. J. The petition is substantially defective, and a judgment upon it could be of no practical benefit to the plaintiffs. The object of the suit was to establish a mechanic’s lien in the form of a special judgment, as contemplated by the provisions of the mechanic’s lien law, against the premises on which the lumber sold, constituting the plaintiff’s claim, had been used in the erection of a church building; to the end, if necessary, that the same should be sold to satisfy the judgment. To make such sale effectual in law, the proprietors of the property should not only be privy to the contract of sale, but parties defendant to the action. The church if incorporated, should have been sued by its corporate name. If not,’ the individual members of the church might have been sued collectively, or under section 1680 of the Code of 1851, if they were too numerous and it was impracticable to bring them all before the court, then one or more could have been sued, who could have defended for the whole, provided Tracy acted as their agent. In either event, whether against the corporation as such, or against the individual members of the church, the Catholic Bishop holding the legal title should also have been made a party. None of these things were done. The Bishop was not made a party. There is no allegation that the church is or was incorporated, or that it is sued by its corporate name. The defendant, Tracy, is represented as a Catholic Priest, [532] and an agent duly authorized to purchase of the plaintiffs their lumber, but his connection with the church as a member thereof is not averred, nor does the petition show that he had any interest in the subject matter of the suit other than as a mere agent. His principals, therefore, and not he, should have been made the parties to the suit in order to establish a mechanic’s lien against the property specified. Judgment affirmed.