
    Mason & Craig, Appellants, vs. Maria T. Heyward, Executrix of Jas. F. Heyward, deceased, Respondent.
    OTON APPEAL FROM THE DISTRICT COURT ÓE RAMSEY COUNTY.
    In an action for a mechanic’s lien, it appeared that the labor was performed and the materials furnished principally under tho Lien Law of 1855, and that pending the performance of the labor, that Act was unconditionally repealed by the Act of March 20,1858, Stab of Min.,#. 696, Sec. 19. Tho work was commenced June 10, 1857, and the claimants filed their claim for lien under the Act of March 20,1858. Held that the Plaintiff’s lien depends upon this Act of March 20. That the words “ shall have a claim,” contained in said Act, mean and refer to the time of tho passage of the Act, and subsequently, aud comprehend claims of such nature existing when tho Act was passed. That as botween the mechanic and his employer, this retrospective operation of tho Act cannot become a subject of complaint, and that this lien, (so far as the Defendant is concerned) should date back to the 10th June, 1857.
    The practice of alleging, in a complaint for lien, under the lien law, the facts which authorize the demand sued to be decreed a lien upon specific property, and then so declaring it in the decree or judgment, is tho correct practice in such cases.
    Under tbe opinion of tbis Court in tbe case of Mason dh Oraig vs. James F. Heyward, 3 Mm. B. 182, a judgment was entered in favor of tbe Plaintiffs, for tbe amount found due by tbe referee. And also, it was adjudged that tbe Plaintiffs bave a lien upon tbe property described in tbe referee’s report, from, the 15th da/y of Jwne, 1858.
    Tbis is a motion made on behalf of Plaintiffs to correct tbis judgment, so far as tbe date of their lien is concerned, so as to make it date from tbe day of commencing tbe labor, instead of tbe date of filing tbe claim for lien. Tbe motion is made upon tbe record and affidavits showing that tbe date of June 15, 1858, was a clerical' error.
    Points and authorities of Respondent:
    
      First.' — The judgment cannot be reformed as prayed for by tbe Plaintiff, because
    1. It appears from tbe pleadings and record in said cause that tbe claim of tbe Plaintiffs for lien is founded upon work done and materials furnished to said premises between tbe 10th day of June, 1857, and tbe 1st day of June, 1858, and any right to a lien which by reason thereof, and Chap. 16, Laws 1855, tbe Plaintiffs "may bave bad, was merely inchoate and was divested by section six of act of Legislature passed March 20tb, 1858, entitled “An act securing to mechanics a lien on lands and buildings.” Page 695, Public Statutes.
    
    Inchoate rights generally derived under a statute are lost by its repeal unless saved by express words of the statute. Butler■ vs. Palmer, 1 Mill. 324; 1 Bouvier 44; U. 8. vs. Preston, 3 Peters, p. 57; 6th Wen. 526.
    2. The statutory lien of mechanics is merely an additional remedy to secure the payment of the debt. “ The Statute was intended to secure the laboring man the reward of his labor,” &c. “There is no such thing as a vested remedy.” IT. Y. Big. 448; 12 Wen. 375; Minot Big. 134.
    If the right be vested, yet it is not such a right as being divested impairs the obligation of the contract, consequently the lien is taken away by act of March 20,1858. Satterleevs. Mathewson, 2 Peters. 380; Pa/rsons on Oon. 2 Yol. 534.
    
      Second. — The Plaintiff can only claim a lien under act of March 20th, 1858, and only for services rendered and materials furnished after the passage of such act, and it not appearing from the complaint what amount was due for services rendered and materials furnished prior to the passage and what was due for the same subsequent to the passage]"of the act, the. Court can come to no conclusion in regard to the lien, and must deny it. The law of March 20th, 1858, does not give a lien for work done, &c., prior to its passage. See same, page 695 of Public Statutes. And the law must be strictly construed.
    The remedy being an extraordinary one, and also being in derogation of common right, must be construed strictly, and the Court cannot enlarge it even to prevent a failure of justice. It is a mere creature of the Statute. IT. Y. Big. 448 ; 12 Wen.-373; Mi/not Big. 654; Freema/n vs. Oraw, 3 Comstock 305.
    
      Third. — But if the Plaintiffs had a right to a lien under the law of 1855, of whichjthe legislature could not divest them, by failing to comply with the conditions of that statute, they have divested themselves of any such right. They have brought no action for the recovery of their lien, and do not claim in their complaint in this cause a judgment for lien. Vide Sec. 11, Chap. 16 Laws 1855.
    
      Fourth. — If the Court shall hold such proceedings not to have been necessary, then, if any [correction be made in the judgment -which the Defendant does not ash, everything mthe judgment relative to lien must be stricken out and the Plaintiffs have their judgment merely for a money demand.
    
      Fifth. — If the law of 1855 did require parties to bring action for the recovery of their lien, when judgment was had in such action, such judgment as notice to parties took place of the claim lien filed (the claim under law of 1855 was filed in the-office of Clerk of the Court) and this judgment having stood as such notice for nearlyeighteen months, the Court is bound to presume that the alteration of it would prejudice the' right of intervening parties.
    
      8ixth.~An.j alteration of the judgment might work to such prejudice, and in any event the Court would only give a conditional order.
    Smith & GilmaN, and D. Coopeb, Counsel for Appellant.
    ¥m. Sprigg Haul, Counsel for Eespondent.
   By the Oowt

FlaNdrau, J.

This is a motion on the part of the Plaintiffs to correct an error alleged to have been made by them in the entry of the judgment in this case in this Court. The motion was made in the early part of this Term and an order made allowing the amendment in a particular way, but on our attention being called subsequently to the order, it was discovered that from an imperfect statement of the facts having been furnished to the Court, we had supposed the case to have been dependent upon the lien act of August 12, 1858, when in fact it turned upon the act of March 20th, 1858. Upon this discovery being made, the motion was reargued upon a correct understanding of the facts.

It is quite clear that the object of the action was to secure a lien upon the premises described in the complaint, as well as to determine and recover the amount of the demand, and we think the complaint contains facts sufficient for that purpose. The labor was performed and the materials furnished principally under the mechanics lien law of 1855, known as the Winona act, which act pending the performance of the labor and the furnishing materials was unconditionally repealed by the act of March 20th, 1858. JPub. Stats. ¶. 696, See. 19. The lien of the Plaintiffs therefore must depend upon the latter act. This latter act gives a lien as well for “ claims for materials furnished or services rendered,” which accrued before, as after its passage, and the liens so given relate back to “ the time of the commencement of such services, or the furnishing of such materials.” The language of the act is “ That every dwelling house or other building, for the construction, erection or repairs of which any person shall have a claim for materials furnished or services rendered, shall, with the land,” &c.; “ b,e subject.” The words, “ shall have a claim,” mean and refer to the time of the passage of the act, and subsequently, and comprehend claims of such nature existing when the act was passed. As between the mechanic and his employer this retrospective operation of the act cannot become justly a subject of complaint. By an examination of the Judgment Roll it is clear that the Plaintiff was entitled to have his lien date back to the 10th of June, 1857, the time when the work, &c., was commenced, instead of June 15, 1858, as stated in the judgment entry made in this Court, which was, in fact, the date of filing the certificate with the Register of Deeds. Erom this circumstance and the facts stated in the affidavit used on this motion, it is evident that the date of the lien as stated in the judgment was a clerical error occasioned by confounding the date of filing the certificate with the date of the commencement of the work, &c., and as against the Defendant, we see no good reason why it should not be corrected. As the mistake, however, was the'act of the Plaintiffs, and has remained of record for a long period of time, the rights of third parties may have intervened, and as such parties if any are not represented in this motion, we think it our duty to refrain from expressing any opinion as to the effect the correction which we here allow may have upon such rights.

The question of the proper practice under these lien laws has been discussed and considered in this motion, and as it is of interest to the bar that it should be settled, we think that the course pursued by the Plaintiff in this case of alleging in his complaint the facts which authorize the demand sued to be decreed a lien upon the specific premises, and then so deelar-ing it in tbe decree or judgment, is tbe correct practice in sucb cases. The whole record is then in harmony, and the execution which is issued to enforce the decree can by proper recitals and commands instruct the officer clearly as to his duty in reaching the specific property.

It is ordered, that the judgment entered in this case be so corrected that the sum for which the same is rendered be decreed and adjudged a lien upon the lands described in the complaint as against the Defendant from the tenth day of June, 1857, instead of the 15th day of June, 1858, as now declared therein.  