Bradbury v. Butler

• Decision Date: 14 March 1892
• Citation: 29 P. 463,1 Colo.App. 430
• Parties: BRADBURY et al. v. BUTLER et al.
• Court: Colorado Court of Appeals

29 P. 463

1 Colo.App. 430

BRADBURY et al. v. BUTLER et al.

Court of Appeals of Colorado

March 14, 1892

Appeal from district court, Pueblo county; J.C. ELWELL, Judge.

Action by T.A. Butler and Charles R. Butler, doing business as T.A Butler & Son, against W.C. Bradbury & Co., a co-partnership and the Colorado Land & Water Company, a corporation, to foreclose a mechanic's lien. Judgment for plaintiffs. Defendants appeal. Affirmed.

Hartzell & Patterson, for appellants.

Betts &amp Vates, for appellees.

RICHMOND P.J.

In the year 1890, W.C. Bradbury & Co. had a contract for the construction of an irrigating ditch known as the "Bob Creek Canal." Mr. Bradbury let subcontracts, among which was one to the appellees, T.A. Butler & Son, for the doing of a certain portion of work. The contract was let in the month of March, 1890, and was completed the last of May, same year. At the completion of the work, Bradbury & Co. were unable to agree with Butler & Son upon the amount of earth, stone, and other material excavated and filled, and the prices to be paid therefor. Certain payments had been made in the course of the work, and this contention only related to the final payment to be made by Bradbury & Co. No satisfactory agreement having been arrived at, Butler & Son, within the statutory time for filing a lien, filed their lien notice with the proper authorities, and commenced suit in the district court of Pueblo county for foreclosure of the same. To this complaint an answer was filed, and the case came on for trial on the 19th day of June, 1891. The court summoned a jury, and submitted the issues in the case to them. Testimony was taken, and verdict found in favor of plaintiffs for the sum of $2,142.38, and upon this judgment a decree was entered, ordering the sale of the canal unless payment was made, and in all respects complied with the foreclosure of a mechanic's lien. The foregoing is the statement of the case as made by appellants, and is accepted as correct by counsel for appellees, with the exception that appellants erred in stating that the decree foreclosing the mechanic's lien was upon the finding of the jury alone, and with the additional statement that the court, of its own motion, referred the issue as to the amount due plaintiffs to a jury. To reverse this decree, appellants prosecute this appeal.

Several errors are assigned, but counsel for appellants condenses them into three, as follows: First, the action of the court in submitting the whole issue to a jury, and entering up a final decree upon the verdict of the jury alone; second error in the admission of testimony offered on behalf of the plaintiffs in the court below; third, the refusal to give the instructions offered by counsel for defendants in the court below.

It is contended by appellants that the court should have proceeded to hear and determine the liens and claims of plaintiffs, or should have referred the same to a referee to ascertain and report upon such claims and liens, and the sums justly due thereon; and, in support of their contention, they call attention to section 2891, 2 Mill's Ann.St., which provides that the court may proceed to hear and determine said liens and claims, or may refer the same to a referee to ascertain and report upon said liens and claims, and the sums justly due thereon. It is insisted that this provision of the statute is mandatory; that it was not in the power of the court to do otherwise than hear and determine the issues or to refer the matter to a referee. Let it be borne in mind when considering this assertion on the part of appellants, that they have by their statement of the case practically determined that there was but one issue for the consideration of the court or referee. They say, "at the conclusion of the work, Bradbury & Co. were unable to agree with Butler & Son upon the amount of earth, stone, and other material excavated and filled, and the prices to be paid therefor," thus leaving for the consideration of the court, referee, or jury this question of fact. A careful reading of the testimony and record in this case, as well as a review of the conclusions of the jury, satisfactorily establishes the fact that the only question submitted to the jury was the question of the amount due. Now comes the inquiry, under the statute, was it in the power of the court to submit this issue, involving this question of fact, to a jury for its determination, before proceeding to a final decree in the case? This is a proceeding to foreclose a mechanic's lien, and consequently is in the nature of a proceeding in chancery; and, being so, it was within the universally accepted rule recognizing the right of a chancery court to submit questions of fact to a jury for its consideration. It is a proceeding to enforce a lien, or, in other words, under the statute, there is created a sort of mortgage or security which follows the original debt or obligation, and which may be properly enforced on the chancery side of the court. Brock v. Bruce, 5 Cal. 279. When the proceeding is declared...