Spink v. McCall

Roturock, J. i. practice: amendment, — 1. It is urged that there should be a reversal of the decree because the court erred in entertaining a motion to amend the answer at the February term, 1878, and after the decision was announced and a memorandum thereof made on the court calendar. We are unable to discover that this was an abuse of the discretion of the court. When the motion was interposed no decree had been entered. The motion was made at the same term at which the decision was made. Even the record entries of the court may be amended, or any entry exjranged, at any time during the term at which it is made. Code, section 178. Of course this must be for sufficient cause. If in this case it fairly appeared to the court that the ends of justice would be more nearly attained by entertaining the motion, such action was not erroneous. a. mechanic's lion» reclemption'from judicialsale: judgment.' II. The Code, section 3103, provides that “a mechanic’s lien, before judgment thereon, is not of such a character as to entitle the holder to redeem.” Did the plaintiff . -*■ have such a judgment as entitled him to. make ^ ^ statutory redemption? He had a judgment [436] against Eldridge for the amount of Ms claim and a decree of foreclosure as against Eldridge, establishing his lien upon the property. But Eldridge had no interest whatever in the property at the time the plaintiff commenced his action upon his lien. McOall, by her conveyance from Stephenson, assignee, was the owner of tlie equity of redemption. Tlie judgment and decree was of no validity as against the owner of tlie equity of redemption, because she was not- a party thereto. The whole proceeding was np more in effect than a simple judgment against Eldridge for tlie amount due to tlie plaintiff. We think something more than this is contemplated by tlie statute before the holder of a mechanic’s lien is entitled to redeem under the statute. There must be a judgment which establishes the lien against the specific property. This cannot be made effectual without making- the proper parties. As the defendant was the only party in interest, and Eldridge had no ownership whatever in tlie property, no lien could be established thereon without making the defendant a party. It is .provided by section 2510 of the Code that the action for mechanic’s lien shall be prosecuted by equitable proceedings. By section 3103, to entitle the lien holder to redeem, there must be a “judgment thereon,” that is, upon the mechanic’s lien, not a mere money judgment for work and labor, or materials, but a judgment applying the lien to its subject, ascertaining and determining tlie property upon which it shall be operative. This it is declared shall be prosecuted by equitable proceedings. If a judgment for a mere money demand were sufficient to authorize a statutory redemption, it might well be inquired, why require that the proceedings shall be in equity? The plaintiff is not entitled to redeem upon equitable considerations. The case is not within the rule of Jones v. Hartsock, 42 Iowa, 147, where it is held that the right of the holder of a junior mechanic’s lien cannot be prejudiced by a foreclosure to which lie was not a party, but that he could afterwards maintain a suit in equity to redeem. Ip the case at bar the plaintiff was made a party defendan t to the foreclosure of defendant’s mortgage: He should then have asserted his right to a lien, or in his subsequent action against Eldridge [437] lie should have made the holder of the equity of redemption a party, to the end that he might have had judgment not only against Eldridge, but against the property, upon his mechanic’s lien. It follows that the decree must be reversed upon defendant’s appeaL Reversed.