Davidson v. Jennings

• Decision Date: 05 February 1900
• Citation: 27 Colo. 187,60 P. 354
• Parties: DAVIDSON et al. v. JENNINGS et al.
• Court: Colorado Supreme Court

60 P. 354

27 Colo. 187

DAVIDSON et al. v. JENNINGS et al.

Supreme Court of Colorado

February 5, 1900

Appeal from district court, Gunnison county.

Action by I. W. Jennings and others against J. E. Davidson and others. Judgment for plaintiffs, and defendants Davidson and Himebaugh appeal. Reversed.

This action was originally brought in the county court of Gunnison county by the appellees against the appellants and S. B Outcalt, J. T. Clayton, and R. D. Smith, to recover against Outcalt, Clayton, and Smith for goods, wares, and merchandise furnished and labor performed in working the Vulcan mine situate in Gunnison county, Colo., and to establish and enforce a lien therefor against said mine. Judgments for the several amounts claimed were recovered in the county court against Smith, Outcalt, and Clayton, and they were declared to be liens against an undivided one-fourth interest in the mine. Davidson and Himedaugh, who held the title to this interest, appealed from that portion of the judgment which subjected said interest to the liens of plaintiffs, to the district court of Gunnison county. Motion to dismiss the appeal was denied, and a trial de novo had. The material facts disclosed by the evidence introduced are, in brief, as follows: On March 18, 1895, the then owners of the Vulcan mine leased the same, with an option to purchase, to one Frank Winters, until December 1, 1895, which lease was recorded in the office of the clerk and recorder of Gunnison county. On April 11, 1895, the lease was extended until April 1, 1896. On this date Winters assigned the same to one Spinney, and later Spinney assigned a one-half interest therein to R. D. Smith. Subsequently Outcalt acquired the other half, and about the middle of November, 1895, he and Smith commenced working the mine thereunder, and continued to work until about the 1st of March, 1896. Smith and Outcalt carried on their operations under the name Vulcan Mining Company or Vulcan Mine. Clayton was employed by them as bookkeeper, in which capacity he was acting during the times the goods were furnished and labor performed for which suit was brought; and in this capacity he issued orders upon which some of the merchandise was furnished, to which he signed the name of the company, adding to such signature, 'by C.' Also, at times during this period Clayton was at the mine, and, in the absence of Smith and Outcalt, gave directions in regard to the work and operations thereof. On April 6, 1895, he acquired the fee-simple title to an undivided one-fourth interest, and during the time the labor was performed and the materials furnished said interest stood of record in his name. He sold and conveyed this interest to Himebaugh and Davidson on March 2, 1896. The court below inter alia, found that during the time the labor was performed and materials furnished 'the record did not disclose that defendants Smith and Outcalt had any interest in said property; that no agreement existed between said defendants Clayton, Outcalt, and Smith for the working and development of said property for their joint benefit, and, as a matter of fact, said property was being operated for the benefit of Smith and Outcalt alone; that none of the parties performing labor or furnishing materials, on whose account it is sought to enforce a lien in this action against said property, had actual notice, during the period said labor was being performed and said materials furnished, for whose benefit or on whose account said mine was being worked or operated,'--and found, as a conclusion of law, that Clayton, by failing to notify the lien claimants or their assignors that he was not interested in the working and development of the mine, under the circumstances, was estopped from claiming that such persons have no lien against his interest, and that, as against his interest, a lien attached for the work performed and materials furnished, and as Himebaugh and Davidson purchased this interest within the period in which the parties claiming liens might file their lien statement, they took such interest subject to said liens, and entered a decree establishing a lien on the undivided one-fourth interest in favor of the lien claimants, in the respective amounts found due them, together with attorney's fees and costs. To reverse this decree, Davidson and Himebaugh bring the case here on appeal.

Wolcott & Vaile, Thomas C. Brown, and W. W. Field, for appellants.

Sprigg Shackleford, for appellees.

GODDARD J. (after stating the facts.)

1. Appellees assign cross error upon the overruling of their motion by the district court to dismiss the appeal to that court from the county court. The motion was based upon the ground that the appeal was taken by Davidson and Himebaugh alone, and from that part of the decree only that established the lien; the contention being that an appeal from the county to the district court can be taken only by the united action and concurrence of all the defendants to the suit in the county court. We do not think that this position is tenable. Section 1085, Mills' Ann. St., inter alia, provides, 'Appeals may be taken to the district court of the same county, from all final judgments and decrees of the county court, * * * by any person aggrieved by any such final judgment or decree,' etc. It will be seen that this statute provides that an appeal may be taken by any person aggrieved. Davidson and Himebaugh were affected by the judgment and decree only in so far as it established a lien against their property, and were not concerned with, or directly affected by, that portion which adjudged a personal liability against Smith, Outcalt, and Clayton. If it should be held that, as a condition to their right to have so much of the controversy as affected their rights tried de novo in the district court, it was essential that all the defendants in the county court should join in the appeal, or that, in case of the refusal of any to join, it was incumbent upon Davidson and Himebaugh to appeal the entire case, thereby necessitating their giving an appeal bond to answer for the personal judgment, it is manifest that they would, in the one event, have been deprived of their right to an appeal, and, in the other, they would have reaped no benefit from the submission of their case to the district court, even if successful in defeating the lien. The appeal, as taken, in no way disturbed the personal judgment against Smith, Outcalt, and Clayton, which determined their liability; nor was there any occasion for the district court, upon the trial of the question as to whether or not a lien existed against the property of appellants, to consider the personal liability of those parties. The court was therefore correct in so deciding, and refusing to dismiss the appeal.

2. Counsel for appellants contend that the judgment and decree are erroneous, in that the lien decreed against the property of appellants includes, in addition to the principal and interest of the debt, and the usual costs, the allowance of attorney's fees to the respective lien claimants. These allowances were made in pursuance of section 18, c. 117, p 325, Sess. Laws 1893, which reads as follows: 'In all suits for the foreclosure of liens provided for in this act in which the plaintiff shall obtain a judgment and decree of foreclosure against the property described in said lien there shall be taxed as costs in addition to the costs already provided for in such cases, a reasonable sum as attorney fee to be fixed by the court at the time of rendering such judgment and decree.' It will be seen that this section imposes a penalty upon the defendant for exercising, in this class of cases, the common right of making a defense, which is accorded to every other litigant in the courts, by subjecting him to the payment of the plaintiff's attorney's fees if he is successful, without giving him (the defendant) a reciprocal right if he is victorious. As furnishing support for this character of legislation, we are referred to the following cases, wherein statutes allowing an attorney's fee to plaintiff in actions against railroad companies for the killing of stock have been held to be constitutional: Railway Co. v. Duggan, 109 Ill. 537; Railway Co. v. Mower, 16 Kan. 573; Perkins v. Railway Co., 103 Mo. 52, 15 S.W. 320, 11 L.R.A. 426; Railway Co. v. Dey, 82 Iowa 312, 48 N.W. 98, 12 L.R.A. 436. An examination of these cases discloses that the statutes there under consideration required the railroad company to fence its right of way, and provided penalties for the nonperformance of this statutory duty,--among them, an attorney's fee,--but no such reason underlies the legislation in question. The attorney's fee allowed by the foregoing provisions of our statute is not in the nature of a penalty for the violation of any statutory duty, but a punishment for the failure to pay the claim of the lienor, and cannot be sustained upon the principle announced in those cases. Its validity, therefore, depends upon whether it violates any provision of our constitution. Section 6 of our bill of rights enacts 'that courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and that right and justice should be administered without sale, denial or delay.' In Durkee v. City of Janesville, 28 Wis. 464, an act that exempted the city of Janesville from the payment of costs in any action brought against it to set aside any assessment or tax deed, or to prevent the collection of taxes in said city, was held to conflict with section 9, art. 1, of the constitution of Wisconsin, which was substantially like the foregoing section of our bill of rights. Chief Justice Dixon, in discussing the construction and effect to be given...