Linch v. Perrine

• Decision Date: 08 October 1931
• Docket Number: 5731
• Court: Idaho Supreme Court
• Parties: OLEN LINCH, LEWIS LINCH, ROLAND BAIRD, EATHEN FULLER, MILTON MORROW, JOHN BRYDSON, RALPH TIPPETT, JOE MORGAN, S. H. JONES, CHARLES STANTON and HARRY BOWERS, Appellants, v. I. B. PERRINE and HORTENSE PERRINE, His Wife, REILLY ATKINSON & COMPANY, INC., a Corporation, BOISE-PAYETTE LUMBER COMPANY, a Corporation, INTERMOUNTAIN PRODUCE COMPANY, a Corporation, H. B. LONG and E. F. PRATER, Sheriff, Respondents

4 P.2d 353

51 Idaho 152

OLEN LINCH, LEWIS LINCH, ROLAND BAIRD, EATHEN FULLER, MILTON MORROW, JOHN BRYDSON, RALPH TIPPETT, JOE MORGAN, S. H. JONES, CHARLES STANTON and HARRY BOWERS, Appellants, v. I. B. PERRINE and HORTENSE PERRINE, His Wife, REILLY ATKINSON & COMPANY, INC., a Corporation, BOISE-PAYETTE LUMBER COMPANY, a Corporation, INTERMOUNTAIN PRODUCE COMPANY, a Corporation, H. B. LONG and E. F. PRATER, Sheriff, Respondents

No. 5731

Supreme Court of Idaho

October 8, 1931

FARM LABORER'S LIEN-NOTICE OF CLAIM-AMENDMENT-PLEADING-JUDGMENT ON PLEADING-ATTACHMENT.

1. Notice of claim of laborer's lien, not describing crop other than as apples grown on certain land, when in fact no apple trees were growing on such land, held insufficient (C. S., sec. 7372, and sec. 7373 as amended.)

2. After statutory time for filing notice of claim of farm laborer's lien has expired, notice cannot be amended (C S., sec. 7372, and sec. 7373 as amended).

3. Refusing to permit claimants to amend notice of claim of farm laborer's lien after time for filing notice had expired held not error, where proposed amendment would not have cured defect in description of crop (C. S., sec. 7372, and sec 7373 as amended).

4. Farm laborer's "lien" is not susceptible of recordation (C. S., sec. 7362, and sec. 7373 as amended).

5. General denial on information and belief, to complaint seeking foreclosure of farm laborer's lien, constituted simply denial that lien was recorded, therefore did not justify judgment on pleadings (C. S., sec. 7362, and sec 7373 as amended).

6. To entitle plaintiff to judgment on pleadings, defendants' admission must be clear and unequivocal.

7. Attachment need not be levied provided action is brought within thirty days after levy of first attachment and diligently prosecuted to judgment (C. S., sec. 6781, as amended by Laws 1921, chap. 206).

8. Claimant's failing to establish farm laborer's lien could not complain of court's disposition of money involved, since they were not aggrieved thereby.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. William A. Babcock, Judge.

Action to foreclose farm laborers' liens. Judgment for defendants. Plaintiffs appeal. Affirmed.

Judgments affirmed. No costs allowed.

Turner K. Hackman, for Appellants.

The district court erred in denying the motion of appellants to amend the labor liens filed by appellants. (Alberti v. Moore, 20 Okla. 78, 93 P. 543, 546, 14 L. R. A., N. S., 1036; Pomeroy's Code Remedies, 5th ed., note, pp. 421, 423, incl.; Price v. Preston, 103 Okla. 47, 229 P. 437; Hemisphere Oil & Gas Co v. Oil Well Supply Co., 104 Okla. 83, 230 P. 245; Shultz v. Shively, 72 Ore. 450, 143 P. 1115.)

S. T. Hamilton, Bothwell & Chapman, Chas. A. North and Frank L. Stephan, for Respondents.

In a suit to foreclose a lien on apples, where the apples are described as those having been grown on described land, the apples not having been described in any manner, as marked, branded nor their quantity, quality or kind stated, nor the place where they are then located specified or described in any manner, the description is fatally defective. (Shultz v. Shively, 72 Ore. 450, 143 P. 1115; Northwestern Grain Co. v. Kerr Gifford Warehouse Co., 76 Wash. 689, 136 P. 1154; Dexter v. Olsen, 40 Wash. 199, 82 P. 286.)

The court did not err in denying the motions of appellants to amend their labor lien claims. After the time prescribed by statute for filing a lien has expired, the courts have no power to revive or create a lien by so amending a lien claim erroneously filed upon another property that it will describe the property intended; such a description not being a mere ambiguity, but a definite and certain description, the only difficulty being that the description is wholly wrong and does not cover any property chargeable with a lien. (C. S., sec. 7373, amended chap. 182, 1927 Sess. Laws, secs. 7346, 7362; H. S. Johnson Co. v. Ludwigson, 148 Minn. 468, 182 N.W. 619; Goodrich Lumber Co. v. Davie, 13 Mont. 76, 32 P. 282; Hydraulic Press Brick Co. v. Pierz Co-op. Assn., 169 Minn. 452, 211 N.W. 836; Smith v. Shamburger, (Tex. Civ. App.) 273 S.W. 645; 2 C. J. 1012, 1016.)

VARIAN, J. Lee, C. J., and Budge, Givens and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Action to foreclose farm laborers' liens. The complaint alleges that appellants were employed by I. B. Perrine and wife to perform labor upon, and render assistance in caring for, a crop of apples growing upon the southwest quarter of Section 28, Twp. 9 S., R. 17 E., B. M., and the north half of Section 23, Twp. 9 S., R. 17 E., B. M., during the season of 1930.

Respondent Intermountain Produce Company is alleged to have purchased the entire apple crop of the Perrines, and respondents Reilly Atkinson & Company, Inc., and Boise-Payette Lumber Company are alleged to have attached moneys in the hands of the Intermountain Produce Company and E. F. Prater, sheriff (who defaulted and did not answer the complaint), is alleged to have in his hands certain moneys, the proceeds of the sale of the Perrine apples.

At the close of the plaintiffs' case the action was dismissed as to Mrs. Perrine by agreement of counsel. It was likewise dismissed as to two plaintiffs, Roland Baird and Milton Morrow, shown to have been paid.

At the close of their evidence plaintiffs were granted leave to amend their complaint to conform to the proof. Intermountain Produce Company, Boise-Payette Lumber Company and Reilly Atkinson & Company, Inc., respondents, joined in a motion for nonsuit, which was granted. Judgment for the amount of the several labor claims and costs of suit was entered against I. B. Perrine, and denying any lien to plaintiffs.

In a separate judgment, entered at the same time, nonsuits were decreed, costs of respondents were adjudged against plaintiffs, and the moneys in the clerk's hands, paid into court by the Intermountain Produce Company when it answered, were decreed to be paid to respondents Reilly Atkinson & Company, Inc., and Boise-Payette Lumber Company.

Plaintiffs appeal from both judgments.

The first assignment of error is to the effect that the court erred in denying a lien to each of appellants.

The description of the property sought to be charged is identical in each notice of claim of lien and is substantially as follows:

"claims a lien upon that certain crop of apples grown upon the following real estate in Twin Falls County, Idaho, to-wit: Southwest Quarter Section 28, Township 9 South, Range 17 E., B. M., and the North half of Section 23, Township 9 South, Range 17 E., B. M., for labor performed and assistance rendered in irrigating and caring for said crop during the growing season of 1930; etc. "

The evidence discloses that the labor was performed upon the Blue Lakes ranch, situate in Snake River canyon, part of which is on the south side of said river in Twin Falls county and part lying on the north side thereof in Jerome county. There are no apple trees growing in Section 23, Twp. 9 S., R. 17 E., B. M., which is still in sagebrush and lava rock, and is entirely in Jerome county. Only a three-acre triangular piece of Section 28, Twp. 9 S., R. 17 E., B. M., lies south of the river and in Twin Falls county, the remainder of said section being in Jerome county. There are no fruit-trees on said three-acre tract. It is undisputed that no "crop of apples" was grown upon the premises described in the liens during the times mentioned in the lien notices, or at all.

C. S., sec. 7372, grants a lien to "Any person who does any labor on a farm or land in tilling the same, or in cultivating, harvesting, threshing, or housing any crop or crops raised thereon" for such labor.

C. S., sec. 7373, as amended Sess. Laws 1923, chap. 33, p. 36, as amended Sess. Laws 1927, chap. 182, p. 245, provides that one claiming such a lien must file a "claim" for record with the county recorder in the county in which said labor was performed, "which shall be in substance in accordance with the provisions of Sec. 7362," providing for the enforcement of loggers' liens. This last section provides that the notice of claim of lien, among other requirements, shall contain a description of the property to be charged with the lien, sufficient for identification, with reasonable certainty, . . . ."

This court has held that one claiming the benefit of the farm laborers' lien law must substantially conform to the requirements of the statute before he is entitled to a lien. (Nohrnberg v. Boley, 42 Idaho 48, 246 P. 12; Price v. Bray, 48 Idaho 268, 281 P. 470.)

One of the requirements undoubtedly is that the property sought to be charged with the lien must be described in the recorded notice of claim of lien "sufficient for identification, with reasonable certainty."

Bearing in mind that the lien granted by the statute is against the crop, and not against the land, the crop should be described so that it may be identified with reasonable certainty. Where no attempt is made to describe the crop other than as a crop of apples grown upon certain lands, when in fact no apple trees were growing upon the lands described, it is clear there was no crop and therefore no lien could attach.

Construing similar statutes to those under consideration, it has been held that a notice of claim of lien upon "that certain crop of wheat, being about 450 acres in quantity, being about 850 number of sacks of wheat which was raised by said Austin upon the following described premises, situated in Walla Walla County, State of Washington, to wit:" and properly describing the premises, was not sufficient to establish a lien, since it failed to state where the wheat was, its quality or kind, or the character, size or markings of the...