Lus v. Pecararo

Decision Date15 August 1925
Citation238 P. 1021,41 Idaho 425
PartiesERNEST J. LUS, Respondent, v. VINCENZO PECARARO, Appellant
CourtIdaho Supreme Court

PLEADING AND PRACTICE - ACTION TO REFORM AND FORECLOSE A MECHANIC'S LIEN-WHEN MONEY JUDGMENT MAY BE GIVEN-INSUFFICIENT SPECIFICATION - WHEN FINDING WILL NOT BE DISTURBED - ASSIGNMENT OF ERROR - WHEN INSUFFICIENT.

1. Where the complaint is to reform and foreclose a claim of mechanic's lien and the court finds that the plaintiff is not entitled to have the claim of lien reformed and it is not sufficient as a lien, but finds claimant is entitled to a money judgment for wages earned, the court may give judgment for the value of the services performed if the complaint states sufficient facts to support such a judgment. In such case, unless the defendant makes timely demand for a jury trial upon the issue of law presented by the complaint, the entry of a money judgment upon a trial by the court will not be disturbed.

2. A specification that a finding is not supported by the evidence, without designating the particulars in which the evidence fails to support the finding, is not sufficient under C. S., sec. 6886, unless it is intended merely to specify that there is no substantial evidence to support the finding.

3. A finding of fact in a suit in equity, or in an action at law made by a trial judge, will not be disturbed because there is a conflict in the evidence, if there is substantial evidence to support the findings.

4. An assignment that the findings and conclusions as a whole do not support the judgment, without specifying any particulars is too general to be considered.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.

Action to reform and foreclose a mechanic's lien. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

E. V. Boughton, for Appellant, cites no authorities.

Frank Langley, for Respondent and Cross-appellant.

The findings and judgment of the trial judge, if supported by substantial evidence, though conflicting, will be affirmed on appeal. (Davenport v. Burke, 30 Idaho 599, 167 P. 481; Fritcher v. Kelley, 34 Idaho 471, 201 P. 1037; Woodland v. Hodson, 35 Idaho 514, 207 P. 715; Harvey v. Brett, 36 Idaho 126, 209 P. 209.)

An attorney's fee is allowed in suits for wages. (C. S., sec. 7380.)

A personal judgment in favor of claimant against his debtor is proper in an action where claimant fails to establish his lien. (27 Cyc. 433.)

If an employer fails or refuses on demand to pay a laborer his wages when same become due or owing, the laborer may collect wages at the same rate for thirty additional days, if the employer continues that long in default. (C. S., sec. 7381.)

WILLIAM A. LEE, C. J., Budge, Givens and Taylor, JJ., concur.

OPINION

WILLIAM A. LEE, C. J.

--This action was commenced to foreclose a claim for a mechanic's lien for labor alleged to have been performed in the repair and improvement of a certain dwelling-house belonging to appellant. The claim of lien described the premises upon which the building stood as being located on Lot 3, sec. 6, T. 47 N., R. 3 W., B. M., Kootenai county, Idaho, when in fact it was located in the northeast corner of Lot 4, in said sec. 6, T. 47 N., R. 3 W., B. M. The prayer was for a reformation of the claim of lien as to the error in the description mentioned, and a foreclosure of the same; the amount prayed for was the sum of $ 229.50, interest and attorney's fees, and a penalty of $ 135 for the thirty days which respondent alleges appellant had been in default of payment after demand had been made for the principal sum earned for the labor at $ 4.50 per day. This penalty is claimed under C. S., sec. 7381. It was alleged that more than five days before the action was commenced appellant was served with a written demand for the payment of $ 229.50 for said services. The answer, denied the material allegations of the complaint and by way of counterclaim sought to recover from respondent the reasonable rental value of this building that was occupied by respondent and his family during the performance of this labor; and also for the rental value of the orchard connected with said premises. The cause was tried by the court without a jury and it made findings and conclusions in favor of respondent for the amount of wages claimed but refused to reform the claim of lien or allow the penalty claimed by respondent under the statute, and entered a money judgment for $ 229.50 with costs, and $ 25 attorney's fees. This latter amount appears to have been allowed under C. S., sec. 7380, which provides that whenever a mechanic, artisan, miner, laborer, servant or employee shall have cause to bring suit for wages earned and due according to the terms of his employment, and shall establish by decision of the court or verdict of the jury that the amount for which he has brought suit is justly due, and that a demand has been made, in writing, at least five days before the suit was brought, for a sum not in excess of the amount found due, it shall be the duty of the court to allow a reasonable attorney's fee in addition to the amount found due.

Appellant moved for a new trial which was denied and from the order overruling his motion and from that judgment he appeals upon a number of assignments that: (1) the court erred in entering judgment against him; (2) in denying his motion for a new trial; (3) in allowing the cost of preparing and filing the lien; (4) in allowing attorney's fees; (5) in not allowing damages for use and occupation of the property; (6) in disallowing damages for loss of the rental value of the property; (7) in not requiring plaintiff to elect whether he would proceed to foreclose his lien in equity or proceed in an action at law to recover wages.

Appellant's assignment that the court erred in not requiring plaintiff to elect whether he would proceed to foreclose his lien in equity or proceed on the law side to recover wages is, not considered in appellant's brief, as required by Rule 42 of this court. The rule requires that the brief of the appellant shall contain a distinct enumeration of the several errors relied on. Briefs of both parties shall state the several propositions of law claimed to be involved in the case and the authorities relied upon for the support of the same separately from the argument. The points and authorities must be first distinctly stated and the argument set forth supplementary thereto. Appellant's brief contains the assignment as required by the rule but nowhere contains any further reference to the same. Nor does it appear from the record that appellant made any demand during the trial of the case that it be tried as an action at law or that a jury trial was demanded. The record is, therefore, insufficient to present the question that might have been raised by the assignment. (Davenport v. Burke, 27 Idaho 464, 149 P. 511; Hardy v. Butler, 39 Idaho 99, 226 P. 669.)

Primarily the complaint in this case was to reform a claim of mechanic's lien and have the same foreclosed; an equitable action in which neither party was entitled to a jury trial. (Jensen v. Bumgarner, 25 Idaho 355, 137 P. 529; Bradbury v. Idaho etc. L. I. Co., 2 Idaho 239, 10 P. 620; affirmed in 132 U.S. 509, 10 S.Ct. 177, 33 L.Ed. 433.) The court held respondent was not entitled to have his claim of lien reformed and foreclosed, and correctly as we think, but found that he was entitled to recover a money judgment for wages alleged to be due for services performed in the construction and repair of this building and accordingly awarded a money judgment. The action to recover wages for services performed is an action at law, in...

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    ...& F. Co., 43 Idaho 343, 251 P. 1051; Gould v. Hill, 43 Idaho 93, 251 P. 167; Wooten v. Dahlquist, 42 Idaho 121, 244 P. 407; Lus v. Pecararo, 41 Idaho 425, 238 P. 1021; Clinton v. Utah Const. Co., 40 Idaho 659, 237 427; Bedal v. Johnson, 37 Idaho 359, 218 P. 641; Viel v. Summers, 35 Idaho 18......
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