Jensen v. Bumgarner

• Decision Date: 23 December 1913
• Citation: 137 P. 529,25 Idaho 355
• Parties: L. JENSEN, Respondent, v. GEORGE E. BUMGARNER and G. C. BAKER, Appellants
• Court: Idaho Supreme Court

137 P. 529

25 Idaho 355

L. JENSEN, Respondent, v. GEORGE E. BUMGARNER and G. C. BAKER, Appellants

Supreme Court of Idaho

December 23, 1913

FORECLOSURE OF MECHANIC'S LIEN-NEGLECT TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW-REVERSIBLE ERROR-SPECIAL FINDINGS OF FACT BY JURY.

1. An action to foreclose a mechanic's lien is an action in equity.

2. A judgment will be reversed and the cause remanded when the trial court fails to make findings of fact and conclusions of law in an action to foreclose a mechanic's lien.

3. There must be a finding of fact upon each and every material issue made by the pleadings, and the failure to so find upon each and every material issue is ground for reversal.

4. Special findings of fact upon proper interrogatories may be found by a jury in an action to foreclose a mechanic's lien. Such findings, however, are merely advisory to the court, and may be adopted, either in whole or in part, or rejected, and the court may make its own findings of fact and conclusions of law.

5. When a jury is instructed by the court to return a general verdict of indebtedness only in an action to foreclose a mechanic's lien, and there are no proper interrogatories submitted to the jury from which special findings of fact are found by the jury and adopted by the court and where the court makes no findings of fact based upon the issues made by the pleadings, and there are no conclusions of law made by the court, the judgment is void as well as erroneous, and the failure of the court to make findings of fact and conclusions of law is reversible error.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

An action to foreclose a mechanic's lien. Reversed.

Reversed and remanded with directions. Costs awarded to the appellants. Petition for rehearing denied.

J. F Colvin and J. C. Johnston, for Appellants.

The judgment entered by the court below is void for want of findings of fact and conclusions of law upon the equities of the case, as a foreclosure of a mechanic's lien is an equitable action and the general verdict of the jury will not sustain a judgment without findings of fact and conclusions of law by the court, and the judgment was entered upon a general verdict of the jury, without any findings whatever or without the submission of special findings to the jury as advisory to the court, and which if done he might adopt as his findings. (Penninger Lateral Co. v. Clark, 22 Idaho 397-407, 126 P. 524.)

G. W. Lamson, for Respondent.

The case of Penninger Lateral Co. v. Clark, 22 Idaho 397, 126 P. 524, is one in which the question of submitting questions of fact to a jury arose where there was a cross-action in an equitable matter, and does not reach the question of making findings of fact and conclusions of law in a foreclosure case.

Where a jury has been called to decide questions of fact it is not proper or necessary for the court to find and file findings of fact and conclusions of law. (Jenkins v. Commercial Nat. Bank, 19 Idaho 290, 113 P. 463.)

BUDGE, District Judge. Ailshie, C. J., and Sullivan, J., concur.

OPINION

BUDGE, District Judge.

This action was instituted by the respondent to recover from the appellants $ 30.90 upon a contract alleged to have been entered into by the respondent and the agents of the appellants for work and labor performed and material furnished in painting and tinting certain rooms in a building owned by the appellants, situated in the city of Nampa, Canyon county, and for the foreclosure of a mechanic's lien. Judgment was awarded the respondent for the amount prayed for in respondent's complaint, together with court costs and attorneys' fees, amounting in all to $ 120.35. This appeal is from the judgment and also from the order denying and overruling the appellant's motion for a new trial.

The complaint is in the usual form, alleging the contract and indebtedness, the filing and recording of the mechanic's lien, the costs incident thereto, and further alleging that $ 50 is a reasonable attorney's fee for bringing and maintaining the action, and prays judgment for the amount claimed to be due, together with costs, including attorneys' fees, and that a decree of foreclosure be issued, and thereunder the property be sold to satisfy said indebtedness, attorneys' fees and costs.

To this complaint the appellants filed an answer denying specifically the material allegations of the respondent's complaint, and by way of affirmative relief alleging a tender, which offer and tender was so made by the appellants in order to avoid the costs and expenses necessary to be incurred in defending this action.

The errors relied upon by the appellants and upon which they base their grounds for a reversal of the judgment entered in this case are not separately set out in the appellants' brief, and in order to determine the questions raised by the appellants it becomes necessary to segregate the grounds or errors relied upon.

In passing we would suggest that it seems to us that the better practice would be to assign and discuss each error relied upon separately under separate heads, and support these assignments of error by citation of authorities in order that it might be clearly ascertained from the brief the errors assigned and relied upon by counsel.

We gather, however, from the appellants' brief that there are four errors urged by counsel for the appellants upon which they seek to have the judgment in this case reversed and the case remanded, to wit:

1. The insufficiency of the evidence to support the verdict of the jury.

2. That the verdict of the jury is contrary to instructions Nos. 2 and 4 given by the court of its own motion.

3. That instructions Nos. 3 and 5, also given by the court of its own motion, were erroneous and did not state the law applicable to the testimony in this case.

4. That the judgment of the court was void as well as erroneous, for the reason that the said judgment was based solely upon the general verdict of the jury; that there were no...