Daschke v. Schellenberg

Hooker, J.

The complainants’ bill was filed to enforce a mechanic’s lien. Subpoena was duly served, and defendant appeared, and demanded a copy of the bill, which was served in due season. Thereafter defendant filed a demurrer, alleging that the bill was defective because it had not been sworn to. The court overruled the demurrer on January 16, 1900. The defendant filed a claim of appeal on February 12th. It appears to be undisputed that such bills must be sworn (3 Comp. Laws 1897, § 10719), and defendant’s demurrer should have been sustained (3 Enc. Pl. & Prac. 371; 6 Enc. Pl. & Prac. 408, 409; Sill v. Ketchum, Har. Ch. 425), or, if denied, it should have been upon amendment of the bill, which is permissible, as to such defect, under 3 Comp. Laws 1897, § 10736.

Counsel argues that a sworn bill is essential to confer jurisdiction upon the court, and that it cannot be acquired by amendment after the period prescribed by law for filing a bill has expired. This was a proceeding not essential to the creation of a lien, but looking to the enforce-, ment of one already created. Jurisdiction of the party was acquired by service of subpoena and appearance; and, if there would otherwise be any doubt of the authority of the court to save the proceeding and the lien by permitting an amendment, we consider that the statute intended to confer it.

The order is reversed, but with leave to the complainants *218 to amend within 80 days nunc pro tunc on payment of costs of the proceedings upon demurrer in both courts, failing in which the bill will be dismissed, with costs of both courts.

The other Justices concurred.