City Lumber & Supply Co. v. Fisher

• Decision Date: 07 February 1950
• Citation: City Lumber & Supply Co. v. Fisher, 41 N.W.2d 285, 256 Wis. 402 (Wis. 1950)
• Parties: CITY LUMBER & SUPPLY CO. v. FISHER et al.
• Court: Wisconsin Supreme Court

Page 285

41 N.W.2d 285

256 Wis. 402

CITY LUMBER & SUPPLY CO. v. FISHER et al.

Supreme Court of Wisconsin.

Feb. 7, 1950.

Robert Hebert, Tomahawk, Frank E. Hebert, Tomahawk, of counsel, for appellants.

Earl A. Korth, Rhinelander, for respondent.

BROADFOOT, Justice.

The facts in this case are not in dispute. The appellants raise a question of law. They contend that the lien given to a contractor or materialman is like a mortgage and that the judgment should contain a provision for the same period of redemption as is provided in the foreclosure of mortgages. To sustain this contention they first cite the case of Dean v. Pyncheon, 3 Pin. 17. That case arose under the lien law of 1842. The decision in that case referred to the territorial statute of 1839 which provided specifically that the lien, when perfected, became in effect a mortgage. The statute of 1842 provided that sales to satisfy the lien must be made under an execution issued upon the judgment rendered in the action and that the debtor had the same period of redemption following the sale as the statutes then provided in the case of any sale of real estate upon execution. That continued to be the law until 1878, when sec. 3326, Stats. was amended to provide that sales thereunder 'shall be absolute and without redemption.' That provision is still contained in sec. 289.14, Stats.

The appellants next call attention to the provision of sec. 289.09, Stats., which was amended in 1935. Prior to the 1935 amendment that section read as follows: 'Any person having so filed such claim for a lien may foreclose the same by action in the circuit court or any county court having jurisdiction thereof. All persons having filed such claims for liens for work done or materials furnished in the cases mentioned in sections 289.01 and 289.02 may join as plaintiffs; and if any do not so join or refuse to so join they may be made parties defendant. All persons having liens upon the premises by mortgage, judgment or otherwise, subsequent to the lien sought to be foreclosed, and all purchasers of the premises subsequent to such lien may be joined as parties defendant. In case any person who has filed such claim for lien prior to the commencement of such action, or who has such subsequent lien or who is such subsequent purchaser, is not made a party to such action he may, upon application at any time before judgment, be made a party defendant thereto, and any person who shall file such claim for lien after the commencement of such action or who shall obtain such subsequent lien by mortgage, judgment or otherwise, or become such subsequent purchaser after the filing of the notice of the pendency of such action, may, at any time before judgment, upon application, be made a party defendant thereto. If such action be brought by a subcontractor the principal contractor may also be made a party defendant thereto. When the place of trial is changed all subsequent proceedings, including the bringing in of new parties, shall be had in the county to which such change is made.'

Following the amendment by the 1935 legislature sec. 289.09, Stats., reads as follows: 'In the foreclosure of liens mentioned in sections 289.01 and 289.02, the provisions of chapter 278 for the foreclosure of real estate mortgages shall control as far as applicable unless otherwise provided in this chapter. All persons having filed claims for liens in the cases mentioned in said sections may join as plaintiffs; and if any do not join they may be made defendants. All persons having liens subsequent to the lien sought to be foreclosed, and all purchasers of the premises subsequent to such lien may be joined as defendants. In case any person who is a proper party is not a party to such action he may, at any time before judgment, be made a defendant, and any person who after the commencement of such action shall obtain a lien or become a purchaser, may, at any time before judgment, be made a defendant.'

The appellants contend that the amendment adopted by reference that part of ch. 278 providing for a period of redemption. The legislative history of this amendment shows that the change was recommended...