Bonte v. Taylor , 24 Ohio St. (N.S.) 628 ( 1874 )

By the Court.

The act of March 29, 1869, to limit the lien of assessments, etc. (64 Ohio L. 75), provides that the lien of an assessment for certain improvements made before the passage of the act shall continue for and during the term of two years from and after the date of its passage, and of such assessment made after the passage of the act, shall continue for two years after the making thereof, and no longer, unless the person authorized to collect the same shall, before the expiration of such time, have caused the proper action to be brought in some court of competent jurisdiction to enforce such lien, etc. Held:

1. A petition filed in such action, which shows on its face that the statutory period for the continuance of such' lien had expired before the commencement of the suit, does not state facts sufficient to constitute a cause of action.

r 2. A judgment to enforce such lien rendered on such petition, on proceedings in error, should be reversed. The error in such case is not waived by a failure to demur or to answer. This statute, unlike the statute of limitations, does not limit the time within which an action may be brought upon an existing cause of action, but limits the period for which the lien itself, as a cause of action, shall continue.

3. Where an action was commenced for the purpose of enforcing such lien, or was attempted to be commenced, but by mistake, the owner of the premises was not made a party, or served with process, nor was there any endeavor to make him a party to the suit, until after the expiration of the two years, there was no commencement of a “ proper ■action” within the meaning of the exception contained in the act.

4. Nor was a proper action commenced within the meaning of the exception, where a person holding another lien -upon the property, but who was not united in interest with the owner, was made a defendant and served with process before the expiration of the two years, although the owner, -after the expiration of that time, by an amendment of the petition, was made a party.

Leave refused.