Olson v. Pennington

Dickinson, J.1 The statute (Laws 1878, c. 86; Gen. St. 1878, c.-90, §§ 22-26) provides for a lien to secure the wages of mechanics, laborers, and servants in certain cases. It is provided by the first-section of the act that “no such claim shall be a lien upon any real or personal estate, unless the same shall be filed, if real estate, in the office of register of deeds of the county in which such real estate is-situated, within one month after the claim becomes due, in the same-manner as mechanics’ liens are now filed; and, if upon personal property, such claims shall be filed in the office of the clerk of the town or city in which said property is situated, in the manner provided for the filing of chattel mortgages therein.” The lien which is the subject of this action was effected by the filing of a statement of the same in the town clerk’s office. Not being-filed in the office of the register of deeds, it could only be effectual as-to personal property. The question is raised by the demurrer whether it was filed in time to be effectual, even as to personal property. The-limitation of time within which a lien may be filed, under the statutory provision above recited, must be regarded as applicable to every case, whether real estate or personal property is sought to be charged. It must be filed “within one month after the claim becomes due.” It is set forth in the lien statement filed, a copy of which is appended to the complaint, that the sum claimed became due one month preceding the defendant’s insolvency, and that such insolvency occurred on the 14th day of August. This lien statement was verified and filed August 29th, more than a month after the claim is thus [300] •shown to have become due. It thus shows affirmatively upon its face that the claim was not filed within the time allowed. The filing required is intended to serve the purposes of a notice, and to show the •existence of the lien. This statement showing upon its face that the lien claimed could not exist, it was ineffectual to perfect a lien, and the allegation in the complaint that the debt in fact became due on the 1st of August does not avoid the difficulty. The further claim that the lien was ineffectual, because no specified property was described in the lien statement, is not sustained. We are of the opinion that this statute was not intended to require a :specifieation of the property sought to be charged with a lien, and that, at least as to the receiver of the insolvent debtor, a preference might be secured entitling the claimant to be first paid out of the proceeds of the property subject to the lien filed, although there was no particular property described in the lien statement. See Kruse v. Thompson, 26 Minn. 424, (4 N. W. Rep. 814.) Order reversed. Footnotes [1] Berry, 3., because of illness, took no part in tbis case.