Armijo v. Mountain Elec. Co.
| Decision Date | 10 January 1902 |
| Citation | 67 P. 726,11 N.M. 235,1902 -NMSC- 002 |
| Parties | ARMIJO et al. v. MOUNTAIN ELECTRIC CO. MOUNTAIN ELECTRIC CO. v. MILES et al. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
1. Every matter determined on a former appeal is the law of the case, and is binding on us on another appeal.
2. A judgment concludes parties and privies, not only as to any matter which was offered in evidence to sustain or defeat a claim, but also as to any other which might have been so offered. Territory v. Santa Feé Pac. R. Co., 62 P 985, affirmed.
3. If after a mechanic's lien is filed, the improvements situated on the land are destroyed by fire, it does not avoid the lien, but the real estate is still liable therefor.
4. When a mechanic's lien is filed on real estate and improvements, a part of which is owned by minors, and the adult defendants complain of a misjoinder, and have the suit dismissed as to the minors, it does not relieve the adult defendants from liability, but they are liable to pay the entire debt, as they caused the dismissal to be made as to the minors.
5. Attorney's fees are an incident to the judgment, and can be fixed by the court irrespective of any amount mentioned in the complaint or sworn to by attorneys, and on appeal the amount allowed by the trial court will not be changed unless there is manifest abuse of discretion.
Appeals from district court, Bernalillo county; before Justice J. W Crumpacker.
Action by the Mountain Electric Company against Rosalia Armijo and others. From the judgment, defendants appeal, and plaintiff files cross appeal. Modified and affirmed.
N. B Field, for appellants.
Alonso B. McMillan and Johnston & Finical, for appellee.
This is an action to foreclose a mechanic's lien. It is the third time that the case has been before us for consideration. It was first heard under the name of Post v. Miles, 7 N. M. 317, 34 P. 586; the second time it is reported under the title of Mountain Electric Co. v. Miles, 9 N. M. 512, 56 P. 284, and this time it comes up under the names at the head of this opinion. It is unnecessary for us to detail the facts of the case, as they are set out in the former opinions of this court referred to above, and we need now only state any additional facts which were omitted in the former opinions which seem to us to be necessary to a proper understanding of the case, and to set forth what has been done since the case was last decided by us on February 22, 1899. One of the facts which now seems to us to be material is that the master in the case, on the 10th day of April, 1897, filed a supplementary report. This was before the cause was decided by the learned judge below on which the second appeal was taken. Since the cause has been docketed in the district court in obedience to our last decision, 9 N.M. 512, 56 P. 284, the following steps have been taken, to wit: On February 15, 1900, the defendants Rosalia Armijo and Josefa Armijo de Heyn, formerly Josefa Armijo, filed an amended and supplemental answer, which set out that at the time of the bringing of this suit they each owned an undivided one-fourth part of the land in controversy, and that the other half was owned by other persons as tenants in common with them, who were under age at the time of the filing of the suit; that on the 10th day of February, 1897, the buildings on the real property which it is sought to subject to the lien in this suit, including the improvements made by the defendant Miles, were totally destroyed by fire; and that, if any liability exists, it is only for one-half part of the improvements, and not for all. Other grounds are set up in the defense, which it is unnecessary for us to consider, as no errors are assigned concerning them. To this supplemental and amended answer a demurrer was filed; the grounds of the demurrer which are pertinent being: (1) Because an amended and supplemental answer could not be filed after the final judgment of the supreme court upon the appeal; and (2) because the amended and supplemental answer and the several paragraphs thereof do not set up facts sufficient to constitute a defense, set-off, or counterclaim; and (3) that the defendants might have set up the matter contained in the second paragraph of their answer as a defense prior to the final hearing in the district court upon the report of the master. The cause and the demurrer came up for final hearing on the 24th day of March, 1900. The court overruled the demurrer, and entered a decree in accordance with the judgment of this court as expressed in the case of Electric Co. v. Miles, 9 N. M. 512, 56 P. 284, making the mechanic's lien binding on the interests of George H. Miles, Perfecto Armijo, Rosalia Armijo, and Josefa Armijo in the real estate described in the complaint, and ordering that it be sold to satisfy the lien. The decree, however, made the major part of the debt, to wit, $1,300, for which sum Miles had given his note to the Mountain Electric Company, bear interest at the rate of 12 per cent. per annum from March 26, 1892,--that being the rate of interest specified in the note,--and made the remainder of the debt, $167.25, an open account, bear interest at the rate of 6 per cent per annum from October 1, 1892. The decree also allowed as costs in the district court, including a master's fee of $75, the sum of $114.15; costs on the first appeal to the supreme court the sum of $48.55; costs on the second appeal to the supreme court, amounting to $171.40, of which a balance of $146.20 is still unpaid; and the sum of $450 to the attorneys of the Mountain Electric Company for services rendered in the supreme court, and the sum of $2.50 for money expended in filing the mechanic's lien. From this decree defendants appeal to this court, and set up 15 grounds of alleged error.
We are bound in the decision of this case by everything that has been determined by this court when the former appeals were considered and passed upon. The direction in the mandate when this case was last sent back to the district court was that court was commanded to reinstate said cause upon the docket and dispose of said case in accordance with the law as declared in this opinion. This language did not direct the entry of any particular form of judgment, or for any specified sum, but was a direction to the court to proceed with the case to a final decree, following the legal principles announced in the opinion, so far as they were decided. The judgment of this court did not specify what interest the decree to be rendered by the district court should bear, but it did, to all intents and purposes, order that the Mountain Electric Company should recover judgment in some amount, which should be determined in the same manner as any other case. In order to determine this case, we will not consider the errors alleged seriatim, but will only pass on those which seem to have a substantial foundation of merit, and the one which looms up prominently is that which sets out that the building known as the "Armijo House," together with the improvements thereon, was totally destroyed by fire on the 10th day of February, 1897, so that neither it nor any part of it remains. In other words, this assignment raises the point as to whether or not a mechanic's lien can be enforced, and the land on which the improvements stood can be subjected to a lien, when such improvements have been totally destroyed by fire. The master made his report on February 5, 1897, and it will be observed that we have stated above that one of the facts which seems to us to be essential to a proper determination of this case was that the master filed a supplemental report on April 10, 1897, two months after the occurrence of the fire. This report made no reference to the fire or of the destruction of the hotel and electric plant. Doubtless no evidence was ever introduced before the master which would have justified him in making such a finding. Exceptions were filed to the report of the master on the 19th day of February, 1897, and on the 12th day of April, 1897, a motion was filed to strike out the supplemental report made by the master. Nowhere, however, does it appear in the record that any motion was ever made for leave to file an amended answer setting up that the property had been so destroyed, nor does it anywhere appear that such a loss was ever suggested to the court, or that any attempt was made to call the attention of the court to such a fact. We cannot, for a moment, imagine that the learned counsel who so carefully, earnestly, and ably represents the appellants overlooked the importance of this fire, or failed to notice its bearing on his case, and we are therefore driven to the conclusion that the omission arose from either one of two reasons, to wit: (1) That he felt sure of winning his case on appeal; or (2) that, if he lost his case on the appeal then pending, that he would have grounds for additional delay by amending his complaint so as to set up the fire, and, if beaten, again appealing. It is unnecessary for us to consider the first of these two grounds, but the second we will briefly discuss, bearing in mind that the fire occurred on February 10, 1897, and that final judgment was not given by the trial court until June 9th of the same year. This certainly afforded ample time in which to make a motion for leave to file an amended answer setting up the destruction of the building upon the lots in question. The amended answer filed since this case was last before us does not, however, aver that the building in which the electric machinery was situated, and the contents thereof, were destroyed by fire. We have held in a case recently decided by us that a judgment concludes parties and privies not only as to any matter...
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