Chapman v. The A. H. Averill Machinery Co.
| Decision Date | 25 October 1915 |
| Citation | 28 Idaho 121,152 P. 573 |
| Parties | W. E. CHAPMAN, Respondent, v. THE A. H. AVERILL MACHINERY COMPANY, a Corporation, et al., Appellants |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Second Judicial District for Lewis County. Hon. Edgar C. Steele, Judge.
Suit to foreclose farm laborer's lien. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs awarded to respondent.
G. Orr. McMinimy, for Appellants.
The proceedings are controlled by sec. 5141, Rev. Codes. This statute was construed by the Washington court, in a case on all-fours with the case at bar, in Mohr v. Clark, 3 Wash. Ter. 440, 19 P. 28. This case was heard and decided before the statute in Idaho had been passed, and there is no doubt but what our legislature adopted this construction with the statute. (Essency v. Essency, 10 Wash. 375, 38 P. 1130.)
This construction was adopted by the Idaho court in the case of Tuckey v. Lovell, 8 Idaho 731, 71 P. 122.
Geo. W Tannahill, for Respondent.
In order to raise any question of error committed by the trial court, the transcript of the stenographer's notes should be settled and certified by the trial court. (Edwards v Anderson, 23 Idaho 508, 130 P. 1001; Strand v Crooked River Min. & Mill. Co., 23 Idaho 577, 131 P. 5.)
The appellants' mortgage should not be held to be a prior lien to the claim of the respondent for labor performed in harvesting, threshing and caring for the crop. (Sec. 5141, Rev. Codes; Beckstead v. Griffith, 11 Idaho 738, 745, 83 P. 764.)
Washington has a statute very similar to the Idaho statute on this subject, viz., sec. 5957, Bal. Ann. Code.
The latest expression of the supreme court of this state, and the most liberal of all in its construction of our lien laws, is found in Anderson v. Great Northern R. Co., 25 Idaho 433, 138 P. 127. See, also, Chamberlain v. City of Lewiston, 23 Idaho 154, 164, 129 P. 1069; Hill v. Twin Falls Salmon River Land & Water Co., 22 Idaho 274, 125 P. 204.
This action was commenced by respondent to foreclose a farm laborer's lien which was filed in order to secure compensation for labor performed upon and assistance rendered in harvesting a certain crop of grain in Lewis county. The appellants were made parties defendant to the suit and it was alleged in the complaint that they have, or claim to have, some interest in and to the grain covered by the lien, as mortgagees or otherwise, but that their claims, or interests, are subject, inferior and subordinate to respondent's claim of lien.
Appellants filed a general demurrer to the complaint, which was overruled, and they thereafter answered and filed a cross-complaint asking for the foreclosure of certain mortgages upon the grain mentioned and described in respondent's lien, given to secure the payment of money due to them, and alleged that if respondent had a lien, it was subsequent, inferior and subordinate to their mortgages.
A trial was had upon the issues framed by the complaint and answer (the case presented by the cross-complaint having been continued for the term), and resulted in a judgment for respondent, from which this appeal was taken.
The appeal was attempted to be perfected pursuant to the provisions of chap. 119, Sess. Laws 1911, p. 379, authorizing the use of the reporter's transcript of the proceedings at the trial in lieu of a bill of exceptions. Respondent moved to strike the transcript from the files and to dismiss the appeal upon the ground, among others, that the stenographer's transcript was never served, settled and certified by the trial judge so as to give it the force and effect of a bill of exceptions as provided by law.
This court heretofore sustained the motion to dismiss the appeal (Chapman v. A. H. Averill Machinery Co., 27 Idaho 213, 147 P. 785), and upon petition of appellant granted a rehearing, and the case has been argued and resubmitted upon the motions to strike the transcript and to dismiss the appeal, and also upon the merits.
Paragraph 3 of said chap. 119 is as follows:
"At the expiration of the time limited for designating errors, the transcript, with any notice designating errors shall be transmitted to the judge who tried the cause, by the clerk, on application of either party, and such judge shall forthwith settle the same, notifying the parties by such notice as he deems adequate of the time and place of settlement in the event of any error designated by notice and not agreed to, and when so settled, said transcript shall have the force and effect of a bill of exceptions duly settled and allowed, and shall be deemed adequate to present for review any ruling appearing therein to have been excepted to, or by statute deemed excepted to, or any question of insufficiency of evidence which may afterward be properly presented by specification of insufficiency in the brief on appeal, and the original transcript and copies thereof lodged with the clerk shall be by him marked filed and retained by him for transmission to the clerk of the supreme court in the event an appeal is afterwards perfected."
An examination of the record discloses that the stenographer's transcript of the proceedings at the trial in this case was not settled as provided by law so as to entitle it to be used in lieu of a bill of exceptions, and the motion to strike said transcript from the files must be granted. (Edwards v. Anderson, 23 Idaho 508, 130 P. 1001; Strand v. Crooked River Min. & Mill. Co., 23 Idaho 577, 131 P. 5, and cases there cited.)
The motion to dismiss the appeal will be denied and, in the absence of a bill of exceptions or stenographer's transcript settled so as to entitle it to be used in lieu thereof, the case will be considered as an appeal from the judgment upon the judgment-roll alone. (Washington & Idaho R. R. Co. v. Osborne, 2 Idaho 557 (527), 21 P. 421; Swartz v. Davis, 9 Idaho 238, 74 P. 800.)
Appellants assign as error the action of the court in overruling the demurrer to the complaint, and contend the claim of lien attached to and made a part of the complaint discloses that the claimant was a contractor, and was not entitled to a lien under the provisions of sec. 5141, Rev. Codes, which is as follows:
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