The union Democrat., 1871-01-28


Some months since, suit was commenced
in our District Court by q lien-holder against
the owners Of the Souls5y mine. There was
q large number of persons who had filed liens
on the mine amounting to nearly $50. 900
for materials furnished and labor performed
who fled petitions to intervene. Their pc
titions we're dismissed. and the Court denied
a motion that their respective petitions be
allowed to stand as their answers, they hay-
ing been made defendants in the suit. The
time within which the lien law required suit
to be brought To enforce their leins having
expired, they were left without any remedy
to enforce their liens. From this order of the
Court denying them any standing in the case
they appealed. Last week the Supreme Court
rendered decision reversing the judg-
ment and directing that the petitions of the
lien-holders be permitted to stand as their
answers. The decision is as follows:
"Phe1ps rs. Daridson. action was
brought under the Mechanics Lien Act of
1868 (Stats. 1S6T-S. p. 59S(. The plaintiff
made all the lien-hoders defendants, in ac-
cordance with the fifth subdivision of Sec. 10.
All the lieu-holders fled their respective pc
eit;ons of Intervention. On motion of the de-
PENDANTS, who are alleged to be the owners
of the mine. the several petitions were dis
missed Thereupon the lisn-nolders moved
that their respective petitions stand as their
respective answers, but tie moebn was de-
MED.
The first subdivision of Section 10 provides
that the pleadings in an action brought under
that Act. shall be the same as in other cases.
in the District Courts-that is to say, the
pleadings she'll conform to the provisions of
the CODE The lien-holders having been made
defendants, and having as such defendants
the right to present their claims for adiudica-
ton, were not authorized to change their po-
sition to that of interveners.
But their petitions should have been allow
ed to stand as their answers. They contain
all the allegations which are necessary in or
der to entitle them to have their claims en-
forced as liens, and to participate in the pro-
ceedsof the sale of the premises. The mere
formal words by which the pleadings are de-
nominated petitions, and in which they claim
the right to intervene as plaintiffs, may be
stricken out as surplusage.
Objection is made by the defendants, who
own the premises, that the petitions were not
served upon them within ninety days after
the filing of the liens, and that therefore the
liens expired. The objection proceeds on the
theory that as the Act requires an action to
be commenced by lien-holder within ninety
days after the filing of his lien, the action
will not be deemed to be commenced by a
lien-holder who is made a defendant to the
action brought by another lien-holder, until
he has served on the party to be affected By
the lien. the pleading by which he asserts his
claim and right to lien. As the Mechanics
Lien Act contains no provision regulating the
proceedings 10 that respect. the practice, as
we'll as the pleadings, is governed by the
code.
An action is commenced when the COM
plant is filed and n summons is issued there
on, or is waved by the appearance. demurrer
or answer of the defendants. The service of
a copy of tue complaint is not required for
that purpose. Regarding the pleadiIgs which
were filed by the lien. holders as stating
cause of action in their behalf, no reason is
perceived why copy of such pleadings
should be served, in order that the action on
their behalf should be deemed to have been
commenced that would not also apply to
drawn from the analogy between such plead.
ings and a complaint. it sustains the position
of the lien-holders The Court had already
acquired jurisdiction of the defendants, and
although the defendants would not be requir-
ed to reply to the pleadings of the lien-holders
before they were served with those pleadings,
vet the action was commenced by the lien
holders when their pleadings were filed.
The objection that the causes of action Of
the respective lien-holiers for the enforce
ment of their liens were barred by the stat
ute, can only be taken by demurrer or an
swer.
Judgment reversed and cause remanded.
with directions to permit the petitions of the
lien-holders to stand as their answers.
RHODES, Oh. j.
We concur: CROCKETT, j.,
WALLACE. J..