Workingmen's Building & Loan Ass'n v. Hunger

Smith, C. C. J.

(Orally.) This is a motion to .strike the complaint. The basis of the motion is that the plaintiff does not allege in its complaint a compliance with the statute requiring the filing of a lis pendens prior to the institution of suit.

The provisions of section 51 of the act on mortgages, providing for the filing of lis pendens prior to commencing action .on the bond for deficiency, in my opinion cannot be waived by the defendant, as the plaintiff in this action contends was done.

Where a lis pendens has been actually filed in the proper time and the complaint fails to aver filing…