Finane v. Las Vegas Hotel & Imp. Co.

Decision Date31 January 1885
Citation3 N.M. 411,5 P. 725
CourtNew Mexico Supreme Court
PartiesFINANE and anotherv.LAS VEGAS HOTEL & IMP. CO.


Appeal from First judicial district court, San Miguel county.

Mechanics' liens must be enforced in equity, in the absence of statute making the proceeding an action at law.

Lee & Fort, for appellees.

Catron, Thornton & Clancy, for appellant.


This is an action of assumpsit, (trespass on the case upon promises,) brought by the plaintiffs against one John B. Wooten, jointly with the appellant. The declaration contains the common counts in assumpsit, alleging indebtedness by Wooten, his promise to pay, and the breach. This is followed by a special count, setting forth that the “work, labor, service, and materials” were performed and furnished for and about the construction of a building, the property of the appellant, and also setting up the making and filing of a claim for lien on the real estate of the appellant, upon which the building was erected, in accordance with the statutory requirements. These counts are followed by a prayer for judgment against Wooten “for the said several sums of money, and that said real estate, or so much thereof as is necessary to satisfy plaintiffs' claim, be sold for said purpose, pursuant to law in such case made and provided.” To this declaration the defendant Wooten pleaded the general issue. The appellant herein appeared separately and pleaded, first, the general issue to the common counts, and then added a special plea specifically denying each and every allegation in the special count in the declaration. The appellant also filed a plea in abatement, alleging that, since the commencement of this action, the plaintiff had brought another proceeding in equity, in the same court, for the same cause of action, and between the same parties. To this plea the plaintiffs demurred, which demurrer was sustained by the court below. Upon the issues thus framed, trial was had, which resulted in a general verdict against Wooten, assessing plaintiffs' damages at $464.44, and the special finding against the appellant that the lien of plaintiffs was duly filed against the property of appellant, as set forth in the special count in the declaration. Before judgment was entered, motions were made on behalf of the appellant for a new trial and in arrest of judgment, both of which were denied. All the evidence is brought up by the bill of exceptions.

Various errors are assigned in the proceedings in the court below, some of which we will consider. The first, second, and third may be considered together. The first is that such a suit could not be properly brought as an action at law. The second is that two causes of action¶ one at law, the other in equity, are improperly joined. The third is, the judgment against this defendant is not such as can be properly rendered in a court of law. We think these points well taken. A careful examination of the law applicable to the enforcement of mechanics' liens, leads us to the conclusion that, in the absence of plain statutory provisions making it an action at law, the proceeding must be one taken upon the equity side of the court. While the right to a lien and its enforcement is purely the creation of statute, it is so complex in its nature, because of the relations of the parties to each other and the mixed character of the relief granted, that the proceeding is one necessarily utterly at variance with the forms of proceeding in an action at law, and can only be properly dealt with upon the equity side of the court, in the absence of statutes upon the subject. This must always be the case where the statute creating the lien does not specifically point out a method for its enforcement. In many of the states, special provisions are made in the mechanic's lien laws for the methods of procedure for their enforcement, and these methods, it is universally held, must be strictly followed. Of course, where the law itself provides complete machinery for its enforcement, it becomes a special statutory proceeding, and may, in such cases, partake both of the character of an action at law and of a suit in equity. It is, as it is termed in New York, a special proceeding in which the statutory methods are to be strictly pursued. As is said by Phillips in his work on this subject:

“The character of the proceeding, whether legal or equitable, depends upon statutory...

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2 cases
  • Sonida, LLC v. Spoverlook, LLC
    • United States
    • Court of Appeals of New Mexico
    • December 8, 2015
    ...omitted). This construction applied to the verification requirement. Finane v. Las Vegas Hotel & Improvement Co., 1885–NMSC–023, ¶ 13, 3 N.M. 411, 5 P. 725 ("[Verification] is a substantial and necessary requirement, and must be complied with in order to make the claim of lien effectual. Th......
  • Home Plumbing & Contracting Co. v. Pruitt
    • United States
    • New Mexico Supreme Court
    • June 7, 1962 hold that the mechanics lien law was in derogation of the common law and should be strictly construed, Finane & Elston v. Las Vegas Hotel & Improvement Company, 3 N.M. 411, 5 P. 725. In Minor v. Marshall, 6 N.M. 194, 27 P. 481, it was held, while adhering to the strict construction rule,......

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