Idaho Min. & Mill. Co. v. Davis

• Decision Date: 18 May 1903
• Docket Number: 894
• Citation: 123 F. 396
• Parties: IDAHO MIN. & MILL. CO. et al. v. DAVIS.
• Court: U.S. Court of Appeals — Ninth Circuit

123 F. 396

IDAHO MIN. & MILL. CO. et al. v. DAVIS.

No. 894

United States Court of Appeals, Ninth Circuit.

May 18, 1903

Appeal from the Circuit Court of the United States for the District of idaho.

This action was commenced in the district court of the state of Idaho, in and for Elmore county, but upon the petition of the defendants was removed to the United States Circuit Court for the District of Idaho; the jurisdiction of that court attaching by reason of the diverse citizenship of the parties. The plaintiff (appellee herein) alleged that he was employed by the defendant corporation on August 1, 1887, as foreman of certain mines owned and operated by it in Elmore county, Idaho, at an agreed sum of $150 per month wages; that he continuously performed work and labor in such capacity in and upon the mining premises of the defendant corporation down to the time of filing the will, namely, nine years and eight months for which services there was due him $17,400, of which he had been paid $9,200, leaving a

balance alleged to be due and owing of $8,200. The plaintiff further alleged that he had filed his claim of lien within the time required by the statutes of Idaho; also that the defendant Frank P. Ray had or claimed to have some interest in said mining premises, but plaintiff alleged that such interest was subsequent to his own; and he prayed that his lien be foreclosed, and the property therein mentioned be sold, and the proceeds be paid to him, with judgment in his favor for any deficiency. The answer of the defendants admitted the original employment of the plaintiff by the defendant corporation at the sum of $150 per month, but alleged that in August, 1889, it closed its mine and mill, and did not thereafter employ any one at said premises but the plaintiff who from that time on worked merely as watchman, at the agreed salary of $75 per month. It is alleged that the plaintiff has been paid in full the amount due him for all said services. The defendant Ray, answering specially, denies that he has any interest in the property in question other than as stockholder. The court found that the plaintiff was entitled to the sum of $150 per month from August, 1887, to January 1, 1890, and to $75 per month from that time to May 1, 1897, making a total amount earned by the plaintiff of $10,900, of which $9,200 had been paid, leaving a balance due of $1,700, for which judgment was given, with interest. The lien was found to be valid, and the property ordered sold in accordance with the prayer of the complaint. From this judgment the case is appealed to this court.

Wyman &amp .wyman, for appellants.

Hawley & Puckett, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge, after stating the facts as above, .

The findings of the court below are assigned as error. Upon the hearing before the commissioner, the defendants (appellants) appeared by counsel and cross-examined the plaintiff's witnesses, but no testimony was offered on behalf of the defendants. The findings of the court were therefore based upon the evidence introduced by the plaintiff. From this it appears that the plaintiff entered into the employ of the defendant mining company as foreman, on August 1, 1887, at $150 per month, and that he remained in such employ, in some capacity, until the time of bringing the present suit. The employment of the plaintiff is admitted by the defendants but the amount of wages to be paid per month is disputed; the defendants claiming that, from August, 1889, the plaintiff was employed merely as watchman, at $75 per month. From the plaintiff's own testimony it is apparent that his duties were merely those of a watchman and caretaker after the year 1889; but the exact time of the change of employment, owing to the discontinuance of active work at the mine, is not clearly ascertained. The evidence does not satisfactorily establish the plaintiff's claim that he is entitled to $150 per month for the entire period, but does show that he is entitled to compensation for the services performed by him for the mining company. This compensation the court below found to be $10,900. The plaintiff admits having received $9,200, which would leave a balance of $1,700 still due to the plaintiff.

While in an equity proceeding of this character an appeal practically affords the litigants a retrial of the questions presented, nevertheless the findings of fact made by the trial court will be accorded great weig...