Idaho Comstock Min. & Mill. Co. v. Lundstrum

• Decision Date: 14 December 1903
• Parties: IDAHO COMSTOCK MINING AND MILLING COMPANY v. LUNDSTRUM
• Court: Idaho Supreme Court

74 P. 975

9 Idaho 257

IDAHO COMSTOCK MINING AND MILLING COMPANY v. LUNDSTRUM

Supreme Court of Idaho

December 14, 1903

NOTICE OF APPEAL-WHEN SUFFICIENT.-A notice of appeal to this court in the name of the original parties to the action from the judgment and order overruling motion for new trial is sufficient where it is shown that other parties were brought in by way of cross-complaint of defendant (appellant), the same attorneys appearing for plaintiffs and the new parties and motion to dismiss will be denied.

UNDERTAKING ON APPEAL SUFFICIENT WHEN.-An undertaking in the usual form on appeal from judgment and order overruling motion for new trial is sufficient when in the name of the original parties where other parties have been brought in by way of cross-complaint of defendant, if it provides that defendant will pay all damages that may be awarded on either appeal and action will not be dismissed for want of sufficient undertaking.

NONSUIT-WHEN NOT GRANTED.-A motion for nonsuit will not be granted where there is any evidence supporting the complaint.

LABORER'S LIEN-WHEN CREATED.-By the provisions of section 4445, Revised Statutes, a party placed in charge of mining property consisting of both personal and real, has a lien on the personal property while in possession thereof.

(Syllabus by the court.)

APPEAL from the District Court of Idaho County. Honorable Edgar C Steele, District Judge.

Judgment for defendant, from which, and an order overruling a motion for new trial, he appeals. Judgment reversed.

Reversed and remanded, with costs.

L. Vineyard, for Appellant.

The notice of intention to move for a new trial, and referred to, is sufficient, both as to form and substance, as required by our statute, section 4441, Revised Statutes, when based upon the minutes of our court, and the same was filed and served. But if this had not been done respondent cannot here question the notice, after they participated in the argument for a new trial, upon which the notice was based; this, we submit, waives the right to object. (Hayne on New Trial and Appeal, sec. 14, p. 61, sec. 27, p. 99; Idaho Rev. Stats., sec. 4443; Stufflebeam v. Montgomery, 3 Idaho 20, 26 P. 125.) The notice of appeal is sufficient both as to form and substance. The statute prescribes no particular form it should be in. (16 Am. & Eng. Ency. of Law, 808; 23 Am. Dec. 62; Idaho Rev. Stats., sec. 4924.) The question is, Does the notice inform the respondents upon whom it was served that the defendant Lundstrum appeals from the judgment rendered in said court and cause on the twenty-third day of February, 1903; and also that he appeals from the order denying him a new trial made on the nineteenth day of March, 1903? While it is true that the notice was not addressed to all the respondents, the record shows beyond dispute that it was served upon the attorneys of all the respondents. (Stufflebeam v. Montgomery, 3 Idaho 20, 26 P. 125; Butler v. Ashworth, 100 Cal. 334, 34 P. 780; Nevada Cent. R. R. Co. v. Lander Co., 21 Nev. 409, 32 P. 673.) The undertaking is sufficient as to form and substance, and is duly filed, as certified to by the clerk. (Davis v. Wakelie, 156 U.S. 680, 15 S.Ct. 555, 39 L.Ed. 578.) The undertaking on its face shows that it is in due form and duly filed, and in this particular is exactly before this court as the undertaking in the case of Brown v. Levan, 4 Idaho 794, 46 P. 661. The statement is sufficient both as to form and substance, and may be used in this case on both appeals. (Hayne on New Trial and Appeal, pp. 752, 753, secs. 96, 250, 252; Idaho Rev. Stats., sec. 443.) It contains the grounds presented on the motion, and also the appeal from the judgment, and is in conformity to section 4818, Revised Statutes of Idaho and cannot here be impeached by affidavits. There is no difference between the statement and a bill of exceptions. (Hayne on New Trial and Appeal, p. 761, secs. 254, 256.) When an action has been heard upon its merits and nothing remains to be done but to give judgment, it is the duty of the court to render final judgment without delay. (Burgess v. Kirby, 94 N.C. 575; Mace v. O'Riley, 70 Cal. 231, 11 P. 721.) When a judge orders a judgment filed after his term has expired, with full knowledge on the part of the judge that his term has expired and the judgment filed after his term has expired, such entry will not support a judgment. (12 Am. & Eng. Ency. of Law, p. 13, and note. As to the power during vacation, see 12 Am. & Eng. Ency. of Law, p. 14; Tyson v. Gluize, 23 Gratt. (Va.) 800; Hardin v. Ray, 89 N.C. 364; Bynum v. Powe, 97 N.C. 374, 2 S.E. 170.) To the proposition of agency we say the evidence of Burke, Stewart and the defendant shows that Phelps held himself out as the agent of the company; that he was performing services at the property as its general manager, mortgaging the property of the company, causing the annual assessment work to be done on the property, and paying for it by checks drawn on the company, which were paid by it without objection. We submit the following authorities upon which agency was established upon evidence very much weaker than in the case at bar, viz.: Angell & Ames on Corporations, 18th ed., sec. 248; Union Gold Min. Co. v. Rocky Mountain Nat. Bank, 1 Colo. 531; S. C., 2 Colo. 248, and 565, C. C.; affirmed, 96 U.S. 640, 24 L.Ed. 648; Roberts v. Washington Nat. Bank, 11 Wash. 550, 40 P. 225; Markell v. Matthews et al., 3 Colo. App. 49, 32 P. 176 (very slight evidence only necessary to establish agency); Modoc Gold Min. Co. v. Skiles, 13 Colo. App. 293, 57 P. 190, citing with approval, Rio Grande Extension Co. v. Coby, 7 Colo. 299, 3 P. 481. 2. To the proposition, Can the defendant recover in this form of action on his cross-complaint? We say yes, for and on account of the following reasons: 1. By the act of the plaintiff, the defendant was enjoined from collecting his pay under the provisions of section 3445 of Revised Statutes, and which, by that act, threw the whole case on the equity side of the court to be determined on defendant's answer and cross-complaint. 2. That when the plaintiff put the case in equity by injunction, the court took jurisdiction for all purposes that might arise, in order that a complete determination of all the rights of the respective parties to the controversy, as presented by the pleadings and proofs, could be had. (McNeady v. Hyde et al., 47 Cal. 481; Burke etc. Livestock Co., Limited, v. Wells Fargo Co., 7 Idaho 42, 60 P. 87; White v. Lyons, 42 Cal. 271; Walker v. Sedgwick, 8 Cal. 398.) We now come to consider the legal relations existing between the defendant Lundstrum and the Idaho Mining and Milling Company by reason of his employment by said company in delivering into his possession the property described in exhibit "A" to be cared for and protected by him, and for which he was to be paid at the rate of two dollars per day and board, or three dollars per day without board (board to be reckoned worth one dollar per day) for a limited time, or until relieved; the property to be retained by him as security for his pay. By this special contract the defendant occupied a double relation to the said property: 1. That of a bailee for hire, pledging the property therefor; and 2. That of a special or statutory lien, depending upon his possession to be satisfied out of the property in case the contract was not complied with on the part of the company or employer. This statutory lien which was thus created under section 3445 of the Revised Statutes of Idaho is unquestionably a species of mortgage security, and might be enforced in a court of equity like any other mortgage, at the option of the lienholder. For "once a mortgage always a mortgage," without regard to the manner of creation, is a well-known maxim. If the property was delivered to Lundstrum, under this special bailment, as we contend, with no intention on the part of the company of continuing to exercise possession over it until he was paid, then there can be no question as to Lundstrum's possession under the statute, and which made it the subject of a pledge or lien under the statute. This is a question of intention of the parties (Boone on Mortgages, sec. 288); and in case of doubt, the law favors the conclusion that the transaction was intended as a pledge. (Boone on Mortgages, sec. 288; Cooper v. Ray, 47 Ill. 53; Collins v. Buck, 63 Me. 459, and authorities cited; Case v. Allen, 21 Kan. 217, 30 Am. Rep. 425.)

Fogg & Nugent, for Respondent.

The following decisions, either directly or by analogy, support principles leading to the conclusion that appellant's notice of appeal is fatally defective. In Meley v Boulon, 104 Cal. 263, 37 P. 931, it is held that while a notice of appeal should be given a liberal construction, it must at least describe the judgment. In Hamilton v. Butler, 33 Or. 370, 54 P. 200, a notice properly entitled in the court and cause, and which described the judgment appealed from no further than that it was entered against appellant in an action between certain parties in a certain court on a certain day, is held insufficient. To the same effect where the nature of the action was not stated, although notice properly entitled. (Crawford v. Wist, 26 Or. 596, 39 P. 218; Moulton v. Ellmaker, 30 Cal. 528; Duffy v. McMahon, 30 Or. 306, 47 P. 787.) Where an undertaking on appeal is not in conformity with the notice of appeal, the appeal may be dismissed. (Walker v. McGinness, ante, p. 162, 72 P. 885.) The record on appeal must show that an undertaking on appeal in due form has been properly filed, or that the same has been waived by stipulation of parties, and the transcript must contain the certificate of the clerk or the attorneys. (Rich v. French, 3 Idaho 727, 35 P. 173.) Had the defendant...