Alesina v. Stock , 8 Mont. 416 ( 1889 )

McConnell, C. J.

The appellant, Martin Alesina, filed his complaint in the District Court of Madison County, for the purpose of enforcing a lien upon a certain mining claim, for work and labor performed upon said mine; also for certain accounts for similar labor of which he claims to be the owner, performed by Joseph Torisana and John Allesandri. The complaint avers that John C. Stock is the owner of the mine, but that he had leased it for a term of years to Martinetti, and that the work and labor were performed under a contract with the said lessee. The prayer is for a judgment against Martinetti for the amount of said accounts, and that they be decreed liens upon said lode claim, and that the same be sold for their satisfaction. The respondent, John C. Stock, has alone filed a demurrer to the complaint, upon the ground, “first, that the same does not state facts sufficient to constitute a cause for action; second, that the second cause of action therein does not state facts sufficient to constitute a cause of action, in this, that Martin Alesina, therein mentioned, is not entitled to a lien under the statutes of said Territory upon the property of this defendent; third, that the account therein specified is not verified according to law.” The accounts are filed in the office of the county clerk and recorder of Madison County, and are made an exhibit to the complaint and a part thereof. From this it appears that the complaint upon its face shows that the appellant, and Torisana ceased work September 26, 1887; that their accounts were filed with the county clerk and recorder, November 11, 1887, forty-six days after ceasing work; that Allesandri ceased work September 27, 1887, and filed his account November 25, 1887, fifty-nine days after ceasing work.

By section 2 of an act passed at the extra session of the Fifteenth Legislative Assembly of this Territory, and approved September 14, 1887, section 821 of the General Laws of the Territory was so amended that work and labor performed upon a mine was a lien for forty-five days only upon said mine, after the work and labor had been performed; and from the statement as it appears upon the face of the complaint more than forty-five days had elapsed from the completion of the work and labor in each of the accounts sued on before the said accounts were filed with the county clerk and recorded, as required by said act. It thus appears that they were barred by the Statute of Limitations at the time the action was brought. (Alvord v. Hendrie, 2 Mont. 115-122; Davis v. Alvord, 94 U. S. 545, 547.)

We deem it unnecessary to pass upon the question whether the labor performed by Martin Alesina in hauling ore and wood, and making trips to Butte and Silver Star for the lessee, was a lien upon said mine or not, as it cannot be enforced by reason of the Statute of Limitations.

As there was no defense in the court below on the part of Martinetti, and as John C. Stock had no interest in said judgment, but defended alone, upon the ground that the plaintiff sought to sell his mine for the debts of said Martinetti, the affirmance of the judgment below sustaining the demurrer filed by John C. Stock will not in any manner effect the personal judgment of the court below against said Abram Martinetti.

Appeal dismissed at cost of appellant.

Judgment affirmed.

Bach, J., and De Wolfe, J., concur.