Hathaway v. United Tintic Mines Co.
| Citation | 42 Utah 520,132 P. 388 |
| Decision Date | 30 April 1913 |
| Docket Number | 2440 |
| Court | Utah Supreme Court |
| Parties | HATHAWAY v. UNITED TINTIC MINES CO |
APPEAL from District Court, Fifth District; Hon. Joshua Greenwood Judge.
Action by J. S. Hathaway against the United Tintic Mines Company.
Judgment for plaintiff. Defendant appeals.
REVERSED AND REMANDED.
C. E Norton for appellant.
Miner and McKnight for respondent.
OPINION
This is an action in equity to foreclose a mechanic's lien. The district court entered a judgment or decree foreclosing said lien, and to satisfy the same ordered the property sought to be covered thereby sold and the proceeds of sale distributed in accordance with the decree. The appellant presents the record on appeal and asks us to reverse the judgment for the reasons hereinafter stated.
A preliminary question must be first determined. Respondent interposed a motion to dismiss the appeal upon substantially the following grounds:
(1) That the appellant had practically abandoned the appeal and had not filed the same in time; and (2) that an undertaking on appeal as provided by our statute had not been filed. The first ground is untenable for the reason that the record affirmatively shows that a notice of appeal was served and filed within the time and in the manner and form required by law; and, further, that appellant after doing so complied with the law in perfecting the same. Nor can the motion be sustained upon the second ground for the reason that the clerk, among other things, certifies "that an undertaking on appeal in due form in said action has been properly filed in my office." The clerk's certificate is in compliance with the requirements of our statute, and is conclusive evidence that the appellant has complied with the law respecting the filing of an undertaking on appeal. The motion to dismiss the appeal must therefore be overruled.
Proceeding now to the merits, we remark that, while appellant has assigned a number of errors, those that seem to be relied on in the brief, in substance, are that there is no evidence whatever in support of certain findings of fact made by the district court, and that the judgment or decree is contrary to law.
After a careful examination of the evidence produced by the respondent at the hearing, all of which is certified to this court, we are clearly of the opinion that the first assignment is well taken. The action was one to foreclose a mechanic's lien claimed against certain mining property. All of the allegations of the complaint were denied in appellant's answer. It therefore became necessary for respondent to prove facts from which the court could legally determine and find that he was entitled to a mechanic's lien, and that he had complied with the terms of our statute relating to the establishment of mechanics liens. There is no evidence whatever in the record from which the court could legally determine that the respondent had in any particular complied with the terms of the mechanic's lien statute. There is no evidence whatever that a "notice of intention" to claim a lien was ever made or filed as required by our lien law. Notwithstanding the denials in the answer, and that no evidence whatever was adduced at the hearing with respect to the matters just stated, the court nevertheless found the facts showing that the respondent had complied with the provisions of our mechanic's lien statute, and hence was entitled to a lien against certain mining claims. In addition to this, the court without any evidence whatever found that respondent was entitled to twenty dollars costs for preparing and filing a lien, and twenty-five dollars as an attorney's fee for foreclosing the same. The court entered a judgment or decree foreclosing the lien aforesaid and for the costs and attorney's fee aforesaid, and ordered the mining claims sold to satisfy the amount claimed in said lien, and the costs and fees aforesaid.
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Govert Copier Painting v. Van Leeuwen
...to the lien and has complied with the statute. See Martindale v. Adams, 777 P.2d 514, 516 (Utah Ct.App.1989); Hathaway v. United Tintic Mines Co., 42 Utah 520, 132 P. 388 (1913). The Utah Supreme Court has held that when a contractor finishes his or her work on a job, the statutory period b......
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Bullock v. Joe Bailey Auction Co., 14845
...J. 1 U.C.A., 1953, 70A-2-101, et seq.2 Ibid.3 Black's Law Dictionary, Revised Fourth Edition, 1968.4 Ibid.5 Hathaway v. United Tintic Mines Co., 42 Utah 520, 132 P.2d 388 (1913).6 Hanover Ltd. v. Fields, Utah, 568 P.2d 751 (1977); Wagner v. Olsen, 25 Utah 2d 366, 482 P.2d 702 (1971).7 U.C.A......
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Martindale v. Adams
...appropriate legal basis under § 38-1-3 for imposing the lien on Marinos' ownership interest in the home. See Hathaway v. United Tintic Mines Co., 42 Utah 520, 132 P. 388, 389 (1913) (lien claimant has the burden of proving all elements necessary to establish entitlement to mechanic's lien).......
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Greenhalgh v. United Tintic Mines Co
... ... [42 ... Utah 525] FRICK, J ... This is ... an action in equity to foreclose a mechanic's lien. The ... proof, findings of fact, and judgment are precisely in the ... same predicament as were those in the preceding case of ... Hathaway v. United Tintic Mines Co., 42 Utah 520, ... 132 P. 388, just decided by us. This case is therefore ... controlled by the decision in that one ... For the ... reasons there stated, the judgment is reversed, and the cause ... is remanded to the district court, with directions to grant ... ...