This action was commenced to enforce a mechanic’s lien. The complaint states that the labor was performed and the materials furnished for which the lien is sought, between the 12th of November, 1872, and the 13th of March, 1873. The petition for the lien was filed in the clerk’s office on the 2d of May, 1873, and this action was instituted within *208the time prescribed by the statute. It further appears that the owner of the building was upon his petition adjudicated a bankrupt in the district court for the eastern district of Wisconsin, on the 15th of March, 1873, and that afterwards such proceedings were had that the defendant, Benj. K. Miller was appointed trustee iu bankruptcy for him and of his estate, pursuant to the provisions of section 43 of the bankrupt law, and has entered upon the duties of his office. The defendants failed to answer, and thereupon the plaintiff moved for judgment on the complaint. This was objected to by t'he defendants, on the ground that upon the allegations of the complaint it appeared that the bankrupt court had exclusive jurisdiction of the lien proceeding; and the circuit court, sustaining this view, denied the motion for judgment, and dismissed the complaint for want of jurisdiction. The correctness of this order or judgment is the only question to be considered.
It is claimed by the defendants that the plaintiff has a full and complete remedy in the district court, under the provisions of the bankrupt law, for the protection and enforcement of his lien, and that he should apply to that court for relief. It is possible that the jurisdiction of the • district court under the first section of the bankrupt law would be held to extend “to the ascertainment and liquidation of” this lien, and that it would be enforced in that court upon the facts stated in the complaint, without any petition being filed or suit instituted in the state court to preserve and continue it. This seems to be the view taken of the bankrupt law by the ’ learned judge of the western district in the cases of In re Goolc et al., 3 Bissell, 116, and In re Hoyt, id., 436. In the absence of a decision of the district court where the bankrupt proceeding is pending, we cannot assume that such would be its construction of the bankrupt law. That court might possibly hold that the petition must be filed and the suit commenced in the state court within the time fixed by the statute, in order to continue and enforce the lien. This court has held *209that tbe lien exists by -virtue of the statute and tbe performance of tbe labor, or tbe furnishing of tbe materials, but nevertheless tbe party must file bis petition and commence his action within the period prescribed to enforce it, or it will be lost. Witte v. Meyer, 11 Wis., 296; Rees v. Ludington, 13 id., 277; Jessup v. Stone, id., 467; Hall v. Hinckley, 32 id., 362. There is certainly much reason for saying that the petition must be filed and action instituted in the proper court within the time limited, in order to preserve the lien, whether it is ultimately enforced in the state or federal court. A.t all events we cannot see that it will likely lead to any embarassment or conflict of jurisdiction for the circuit court to retain the cause until the bankrupt court has acted upon the subject. This was the course pursued in Clifton v. Foster, 103 Mass., 233, and we can perceive no objection to the practice. The bankrupt court may authorize the trustee to sell the property subject to the lien, or may proceed to ascertain the amount of the lien and enforce it in the bankrupt proceeding. But until that court takes some action in the premises, the rights of the plaintiff might be imperiled by the dismissal of the complaint. We do not suppose the circuit court can make any order which will interfere with the title or possession of the property in the hands of the trustee, unless the district court allows the property to be sold subject to this lien. But for the purpose of keeping the lien alive, it should order the cause to stand continued to await the action of the bankrupt court in the matter.
We do not think there is anything in these views which necessarily conflicts with the decision in Bingham, assignee, v. Claflin, 31 Wis., 607. In that case the jurisdiction of the state court was invoked to enforce a provision of the bankrupt law. Here that jurisdiction is appealed to in order to continue and keep in existence a lien given by the state statute, and which it is uncertain whether the bankrupt court will enforce or not.
*210By the Court. — The judgment oí the circuit court, dismissing the complaint for want of jurisdiction, is reversed, and the cause is remanded with, directions to continue the cause to await the action of the district court in the bankrupt proceedings.