Frankoviz v. Smith

• Decision Date: 11 January 1886
• Citation: 34 Minn. 403
• Parties: M. FRANKOVIZ <I>vs.</I> HAROLD G. SMITH, impleaded, etc.
• Court: Minnesota Supreme Court

34 Minn. 403

M. FRANKOVIZ vs. HAROLD G. SMITH, impleaded, etc.

Supreme Court of Minnesota.

January 11, 1886.

Appeal by plaintiff from an order of the district court for Otter Tail county, Baxter, J., presiding, vacating and setting aside a judgment entered upon default.

Charles L. Lewis, for appellant.

Rawson & Haupt, for respondent Smith.

GILFILLAN, C. J.

Action to foreclose a lien claimed for material sold and delivered to a contractor in constructing a house for defendant Smith. Judgment having been entered by default, the court below, on motion of defendant Smith, set it aside as to him, on the ground, in effect, that the complaint does not show that plaintiff had a lien when the action was commenced.

A complaint in an action to enforce a mechanic's lien must, of course, (as in any other action,) state facts sufficient to constitute a cause of action, — must, by its allegations of fact, show plaintiff entitled to judgment.

The objection to this complaint is that it does not show that the affidavit and account required by the statute were filed for record in time to preserve the lien. The time prescribed by the statute (Gen. St. 1878, c. 90, § 6,) is 60 days after the time of furnishing the material. To the complaint is attached a bill of particulars, referred to in the complaint, of the materials furnished. In this are 30 items under 13 different dates; the first date being February 14th, the next to the last March 18th, and the last June 4th. The affidavit and account were filed for record August 4th, (Monday.) So that the date of the last item is 78 days after the date of all the other items, and the date of filing the affidavit and account 138 days after all the items but the last. Assuming that the time for filing the affidavit and account began to run June 4th, then, computing the time according to the rule in Gen. St. 1878, c. 66, § 82, by excluding the first and including the last day, and excluding Sunday when that would be the last day, the affidavit and account were filed in time. We have no question that the last item in the bill, "10½ feet eave-trough," if used in the construction of the building, as the complaint alleges, was "material" within the meaning of the statute giving a lien.

The proposition on which the court below appears to have held the complaint bad is that the right to a lien as to all the items prior to the last had expired before that item was furnished, and that the furnishing of that item could not revive the right to a lien for the others, — a proposition entirely correct, if that item and the others are, under the allegations of the complaint, to be taken as wholly independent of each other; for it would be unreasonable that a material-man, after his lien has expired, should be able to restore it by a subsequent independent transaction, — one having no connection with, and being no part of, the transaction out of which his right to a lien arose. Where a lien is claimed for different items, delivered at different times, the right is not necessarily a right to an independent lien for each item furnished. If it were, and it were necessary for the material-man to proceed separately for each item in perhaps a long line of items delivered at different times, the right would in many cases be of very little value. A great many different items may be delivered at different times, and there be but one lien, including all of...