(dissenting).
I dissent:
It is doubtless true that this statute of limitations puts a limit on the life and duration of the lien. It is true also that this statute need not be pleaded against a defendant lien claimant. But in this case, there is neither pleading, proof nor finding, nothing in the record on- the sub*142ject, except a file mark on the answer, and this was in no manner called to the attention of the trial court, yet the majority opinion holds that this file mark, presented for the first time in this court, is conclusive agaiDst the lien claimant on this appeal. With this I cannot concur. My opinion is that this is defensive matter and the defense may be waived. Any personal defense may. But this aside, the place for trial of issues is in the trial court. When parties there litigate the merits fully and to a decision, they should not be permitted on appeal to shift their position and defeat an established claim, by making proof here for the first time of- formal and technical omissions which should properly be presented at the outset of the trial. See Phillips, Mech. Lien, § 331; Ferrier v. McCabe, 129 Minn. 342, 346, 152 N. W. 734; Barstow v. McLachlan, 99 Ill. 641; Barry v. Frayser, 57 Tenn. 206.