Nellis v. Johnson

• Decision Date: 01 May 1936
• Docket Number: 3129.
• Citation: Nellis v. Johnson, 57 Nev. 17, 57 P.2d 392 (Nev. 1936)
• Parties: NELLIS v. JOHNSON ET AL.
• Court: Nevada Supreme Court

57 P.2d 392

57 Nev. 17

NELLIS v. JOHNSON ET AL.

No. 3129.

Supreme Court of Nevada

May 1, 1936

Appeal from District Court, Clark County; Wm. E. Orr, Judge.

Action by C. H. Nellis against Charles Johnson and others, wherein Lola Dottie Cale and S.E. Calvin claimed liens.From an adverse judgment, defendants appeal.

Reversed and new trial granted.

T. A Wells and Louis Cohen, both of Las Vegas, for appellants.

J. R Lewis, of Las Vegas, for respondents.

COLEMAN Justice.

This is an appeal from a judgment and decree foreclosing lien claims and from an order denying a motion for a new trial.

The first point made is that the lien claims were not filed for record within the time prescribed by law.The suit is to foreclose three lien claims for work and labor performed upon mining claims.The lien claims show that each claimant ceased to work not later than November 4, 1933, and that each lien claim was filed January 6, 1934.

Section 3739, N.C.L., relative to the filing of lien claims, reads:

"Every person claiming the benefit of this chapter shall, not earlier than ten days after the completion of his contract, or the delivery of material by him, or the performance of his labor, as the case may be, and in the case of every subcontractor not later than fifty days; in the case of every original contractor, not later than sixty days, and in the case of every person furnishing materials not later than ninety days, after such completion of his contract or the delivery of material or performance of labor by him, file for record with the county recorder of the county where the property or some part thereof is situated, a claim."

Appellant asserts that labor lien claimants must file their claim for record not later than fifty days after performing their labor, contending that the amendment of 1917(Stats.1917, chap. 41), which limits the time for the filing of labor claims to fifty days, controls.

In 1925the section just referred to was again amended (Stats.1925, chap. 169), the act reading that the section in question "is hereby amended so as to read as follows,"the amendment being section 3739, N.C.L., above quoted.

We held in City of Reno v. Stoddard,40 Nev. 537, 167 P. 317, that an amending act which provides that the previous act "is hereby amended so as to read as follows," operates to repeal any provision of the amended act which is not embraced in the amending act.Such is unquestionably the correct rule.Continental Supply Co. v. White,92 Mont. 254, 12 P.2d 569;36 Cyc. 1083.

It is also contended that if the act of 1925 controls, the only persons who are entitled to ninety days in which to file lien claims are those furnishing materials.

That the Legislature of the state has been solicitous of the welfare of the laborer, so far as protecting his claim for services is concerned, cannot be doubted.The lien law not only gives him a right to a lien, but gives him a preferred lien of the first rank (section 3745, N.C.L.); but, unfortunately, the amendatory act of 1925, relative to the time within which such a lien claim may be filed, is not as clear as it should be.It is evident, however, that it does not contemplate the filing of a lien claim for labor within fifty days after the completion of the labor.The lien law is clear as to certain things; and where it is uncertain it must receive a liberal construction.Skyrme v. Occidental M. & M. Co.,8 Neb. 219, 221.And, as said in Maynard v. Johnson (on rehearing),2 Nev. 25, at page 33: "Where the words of a statute are obscure or doubtful, the intention of the Legislature is to be resorted to in order to discover their meaning.A thing within the intention is as much within the statute as if it were within the letter; and a thing within the letter is not within the statute if contrary to the intention of it."

In State v. Ross,20 Nev. 61, 14 P. 827, it was held, in construing a statute, that the intent will prevail over the literal sense.To the same effect, State ex rel. v. Sixth Judicial District Court,53 Nev. 343, 1 P.2d 105.

From a reading of the first part of the section, down to the semicolon, it will indisputably appear that it contemplates that persons who may claim a benefit under the lien act are classified either as contractor, subcontractor, materialman, or laborer.This much is certain.It is furthermore clear from that portion of the section that neither can file a lien claim within a stated time, but that a subcontractor must file his claim not later than fifty days from the completion of his contract.Under the act amended (1917 act), all claimants had to file their claims within fifty days; but under the amendment of 1925, it is clear that the original contractor has sixty days within which to file, and the materialmen have ninety days.It seems the sole purpose of the amendment of 1925 was to give certain claimants longer time within which to file than was given by the 1917 act.Since it is clear the amendment of 1925 contemplates the filing of claims for labor, the most logical and reasonable construction of the section is that such claimants have ninety days, in view of the fact that the words "or performance of labor" come after the statement of the ninety-day limitation.It is clear it is not contemplated labor claimants must file within fifty or sixty days, and the only other period mentioned within which a claim may be filed being ninety days, we can reach no other conclusion than that it was the intention of the Legislature that labor claims may be filed within ninety days.

It appears from the record that at the time the work in question was done the defendant Johnson owned the EurekaNo. 1, EurekaNo. 2, andEurekaNo. 3, the SpokaneNo. 1, SpokaneNo. 2, andSpokaneNo. 3 lode mining claims, and that the two sets of claims were located not far distant from each other.Claimants filed their lien claims against the Eureka group.Upon the trial defendant offered evidence showing that the work performed by the plaintiffs was upon certain claims of the Spokane group.Thereupon the plaintiff moved to amend his claim of lien so as to cover the Spokane claims.The court made an order granting the motion, over the objection of defendant.This ruling is assigned as error.

Section 3739, N.C.L., reads in part:

"Upon the trial of any action or suit to foreclose such lien no variance between the lien and the proof shall defeat the lien or be deemed material unless the same shall result from fraud or be made intentionally, or shall have misled the adverse party to his prejudice, but in all cases of immaterial variance the claim of lien may be amended, by amendment duly recorded, to conform to the proof."

This provision is very broad, and there are no facts or circumstances in the record tending to show...