Steinmetz v. St. Paul Trust Co.

Gilfillan, C. J. Action to enforce a mechanic’s lien against real estate, the owner and others being named as defendants in the summons and complaint. The lien accrued April 6, 1890. The complaint was filed April 3, 1891. . The summons was at the same time placed in the hands of the sheriff for service, and was served on some of the defendants, but never served on the owner, and no further attempt was made to serve on him. On motion of the respondent, one of the defendants, the action was dismissed for want of prosecution, March 3, 1892. Of course, no judgment to enforce a lien against the land could be rendered unless the owner is made a party by being brought into the action. There could be no sale of the land without a judgment against him. The lien law (Laws 1889, ch. 200, § 8) makes the filing of the statement operate to continue the lien for one year after the date of furnishing the last item, and section 10 requires the action to enforce it to be commenced within one year from that date. When an action is to be deemed com [448] menced must be .determined by the provisions of G. S. 1878, ch. 66, §§ 13, 14, according to which an action is commenced against a defendant when the summons is served on him, or delivered to the sheriff with intent that it shall be actually served, and followed by the. first publication of the suAtmons, or the service, within sixty days. (Opinion published 52 N. W. Rep. 915.) The power given the court by section 10 to bring in other parties, and the inhibition in the same section against bringing other actions to foreclose such liens, take effect only when an action has been commenced in which the liens can be enforced; that is, an action to which the owner is a party by the service of the summons. Until there is such an action commenced there is no action into which other parties may be brought, and until then there is no reason why any other lien claimant may not commence his,action. A mere attempt by one lien claimant to commence such an action will not prevent another from bringing his. Judgment affirmed.