Witte v. Meyer , 11 Wis. 295 ( 1860 )

By the Court,

Paine, J.

This was an action to enforce a mechanic’s lien. The petition was filed in the name of “Carl Witter.” The plaintiff’s real name was Carl Witte, and by that name he began his suit and recovered a judgment. This was subsequently set aside on motion, principally for this reason. But we are of the opinion that the petition was amendable in this respect.

This power is certainly conferred by the language of the statute. It says, the court may “before or after judgment, in furtherance of justice, and upon such terms as maybe proper, amend any pleading or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect ” There would probably be no question of the power to amend under this statute, if the thing to be amended were not a petition or claim for a lien which the law required to be filed within a fixed time, in order to continue the lien. But we do not regard this as a sufficient reason to take it out of the power of amendment. The petition for a lien does not create the lien. That exists by virtue of the statute, and the performance of the labor. The filing of the petition is only a part of the proceeding to continue and enforce the lien. It is required to be filed within a limited time, but the action must also be commenced within the same time. Suppose the petition in this case had been right, but the same mistake had occurred in the summons and complaint. Would it not have been amendable even after the expiration of the time in which to commence the action in order to sustain the lien. . We think so, and that the petition stands upon the same footing.

It is true that no amendment should' be allowed in such cases to interfere with rights of third parties accruing after the mistake and before the amendment. And if the original proceeding so utterly failed to comply with the statute as to be a nullity, perhaps no amendment could be allowed, which would amount to an entire new proceeding after the expiration of the time limited by law. But with these restrictions, we think the proceedings to enforce a lien, are within the spirit as well as letter of the law allowing amendments, and should be amended in furtherance of justice. The tendency of decisions is in favor of a liberal exercise of this power, and it has been.used in support of proceedings which were formerly held to require a strict pursuance of the statute in the first instance. Green vs. Cole, 13 Ire., 430; Applewhite vs. Allen, 8 Hump., 698; Shirly vs. Phillips, 17 Ill., 471; Middleton vs Frame, 31 Mo., 413; Lewis vs. Ross, 37 Maine, 230.

Courts have also frequently allowed amendments so as to save the statute of limitations. And that seems to us to stand upon a very similar principle to a case of this kind. They treat the proceeding already existing as a sufficient stock upon which to graft the amendment, and thus prevent a defeat of the entire right which would occur if the party were driven to a new suit. And we think the same reason exists for an amendment of the petition or other proceedings in an action to enforce a lien, and that it should be allowed where the original proceeding constitutes a sufficient foundation to support it. Here the mistake was merely clerical. Nobody could be misled by it. And no rights of third parties have accrued. We think it should have been amended, and that the court below erred in setting aside the judgment on that account.

The order appealed from is reversed with costs.