Neylor v. Lewiston & Southeastern Electric Railway Co., Ltd.

• Decision Date: 25 May 1908
• Court: Idaho Supreme Court
• Parties: N.C. NAYLOR and CHARLES NORLIN, Copartners Engaged in Business Under the Firm Name and Style of NAYLOR & NORLIN, Respondents, v. THE LEWISTON & SOUTHEASTERN ELECTRIC RAILWAY COMPANY, LIMITED, a Corporation, and THE COMMERCIAL TRUST COMPANY, a Corporation, Appellants

96 P. 573

14 Idaho 789

N.C. NAYLOR and CHARLES NORLIN, Copartners Engaged in Business Under the Firm Name and Style of NAYLOR & NORLIN, Respondents, v. THE LEWISTON & SOUTHEASTERN ELECTRIC RAILWAY COMPANY, LIMITED, a Corporation, and THE COMMERCIAL TRUST COMPANY, a Corporation, Appellants

Supreme Court of Idaho

May 25, 1908

MOTION FOR NEW TRIAL-SERVICE OF NOTICE-SUFFICIENCY OF COMPLAINT-MECHANIC'S LIEN-ACCOUNT STATED-INTEREST COVERED BY LIEN.

1. Under secs. 4443 and 4820, Rev. Stat., the notice of intention to move for a new trial is not made a part of the record on appeal, and it is not necessary that the record show service of the same.

2. If however, a notice of intention to move for a new trial has not been served, or the same is imperfect in any way, it is the duty of the respondent to make whatever objection is sought to be urged against the same, at the time the statement is settled or the motion for a new trial is heard and have his objection noted and incorporated in a statement or bill of exceptions. A failure to make such objection at that time will presume the notice to be sufficient and preclude the respondent from making such objection in this court for the first time.

3. An objection that the complaint does not state facts sufficient to constitute a cause of action cannot be reviewed upon an appeal from an order denying a new trial.

4. Where the owners of a railroad right of way authorize contractors to put a crew of men to work upon such right of way, and agree to pay such contractors the amount actually expended in labor and material, and in addition thereto twenty per cent, and a certain sum for the use of the tools used in such work, and the contractors present a bill to the railway company for such labor, which is audited and approved by such company, it becomes an account stated, to secure and support which a lien may be filed upon the property for which said labor was performed.

5. The rendering of an account for labor performed and material furnished, for work upon a railway right of way, which account is accepted and approved by the railway company, is sufficient proof of the performance of such labor and the furnishing of the material used in the construction of such improvement, and authorizes the filing of a lien therefor.

6. Under the statute of this state, a lien may be filed to secure profits upon a contract when such profits are included in the contract.

7. A charge for the use of tools in construction work, for which the employer agrees to pay, is a lienable item.

8. Services performed as superintendent in superintending the construction of railroad work constitute a lienable item under the laws of this state.

9. An account stated cannot be impeached or contradicted except by averring and proving fraud or mistake; and where there is no averment of fraud or mistake, or proof to support the same the account stated becomes a contract as to the amount due and an action may be maintained thereon without proving the original items entering into such account.

10. A person performing labor upon or furnishing material used in the construction of an entire property may claim a lien upon a part of such property, as well as the whole.

11. A lien may be foreclosed against an interest in real property less than that of a fee simple title, as whatever interest the debtor may have in the property may be foreclosed in an action brought for that purpose.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

An action to foreclose a lien for labor and material furnished. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Johnson & Stookey, and A. A. Fraser, for Appellants.

The claim filed by the plaintiff is admissible in evidence as proof of its existence and filing, but it is not evidence of the matters alleged in it. (Boisot on Mechanics' Liens, sec. 613.)

Being created and defined by the statute, it follows that mechanics' liens cannot be created by contract or consent of the parties. (Boisot on Mechanics' Liens. sec. 5, p. 4.)

The proof must show that the labor or material was actually used in the construction, alteration or repair of the railroad. ( Colorado Iron Works v. Riekenberg, 4 Idaho 710, 43 P. 681; McGarry v. Averill, 50 Kan. 362, 34 Am. St. Rep. 120, 31 P. 1082; Wilson v. Nugent, 125 Cal. 280, 57 P. 1008; Hill v. Bowers, 45 Kan. 592, 26 P. 13; Cohn v. Wright, 89 Cal. 86, 26 P. 643; Houghton v. Blake, 5 Cal. 240; Arkansas River Land etc. Co. v. Nelson, 4 Colo. App. 438, 36 P. 307.)

It must clearly appear that the claimant has a lien. No one is entitled to a lien unless the statute includes him or them. ( Thompson v. Baxter, 92 Tenn. 305, 36 Am. St. Rep. 85, 21 S.W. 668.)

No lien is allowed under our statutes for the "use of tools." (Allen v. Elwert, 29 Ore. 428, 44 P. 826, 48 P. 54.)

The mere showing that an account was presented at a particular time and approved and agreed to is not proof that labor was performed or that the materials are of a character which, under our statute, is entitled to a lien, nor is it proof as to the ownership of the land. (Gibson v. Wheeler, 110 Cal. 243, 42 P. 810; Engfer v. Roemer, 71 Wis. 11, 36 N.W. 618.)

A lien must be enforced against the whole of a railroad or not at all, and no lien can be had against any portion of the railroad separately. (Connor v. Tenn. Cent. Ry. Co., 109 F. 931, 48 C. C. A. 730, 54 L. R. A. 687; East Ala. Ry. Co. v. John Doe, 114 U.S. 340, 5 S.Ct. 869, 29 L.Ed. 136; Cox v. Western P. Ry. Co., 44 Cal. 18; Farmers' Loan & Trust Co. v. Candler, 87 Ga. 241, 13 S.E. 560; Midland Ry. Co. v. Wilcox, 122 Ind. 84, 23 N.E. 506; Knapp v. St. Louis, Kansas City & Northern Ry. Co., 74 Mo. 374.)

Chas. L. McDonald, for Respondents.

Both the Commercial Trust Company and the Northern P. Railway Company would be adversely affected by the court granting a new trial herein, or modifying the decree on the motion for new trial; consequently a notice of intention to move for a new trial should have been served on each of them. ( Nelson Bennett Co. v. Twin Falls L. & W. Co., 13 Idaho 767, 92 P. 980.)

The record must contain the evidence of service of the notice, or it must clearly appear from the record that service of the notice was waived. (Hayne on New Trial and Appeal, secs. 15, 210, p. 641.)

The trial court had no jurisdiction of the matter, by reason of failure to serve the adverse parties with notice of intention to move for a new trial, and therefore could not grant a new trial, and consequently this court has no jurisdiction of the matter either. (Herriman v. Menzies, 115 Cal. 16, 56 Am. St. Rep. 82, 44 P. 660, 35 L. R. A. 318; 2 Cyc. 537; Johnson v. Phenix Ins. Co., 152 Cal. 196, 92 P. 182.)

By reason of its being an account stated we did not have to show the amount we had expended in the work, other than was shown by the account stated itself, nor did we have to show by other evidence the expenditure of any money. We are willing to concede that the stating of the account is not in itself proof of the performance of the labor, but we contend that it is conclusive proof of the value of the labor.

Even if the plaintiff might claim a lien on the whole road, it may nevertheless limits its lien by its notice to the part or section of the road for the construction of which it furnished materials. (Giant Powder Co. v. Ore. P. Ry. Co., 42 F. 473; Neilson v. Iowa E. R. Co., 51 Iowa 184, 33 Am. Rep. 124, 1 N.W. 434; Bowan v. Springfield J. & P. R. Co., 1 Cir. Ct. App. 39; Creer v. Cache Valley Canal Co., 4 Idaho 280, 95 Am. St. Rep. 63, 38 P. 654.)

The only way to destroy the effectiveness of an account stated is to impeach it on the ground of fraud or mistake. (1 Cyc. 454; Jewell v. Ketcham, 63 Wis. 628, 23 N.W. 709; Keller v. Keller, 18 Neb. 366, 25 N.W. 364; Fleischer v. Kubli, 20 Ore. 328, 25 P. 1086.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This appeal is from an order denying the appellants' motion for a new trial. Before considering the questions presented by appellant on this appeal, our attention is directed to a discussion indulged in by the respondent, in which it is urged that the order denying a new trial should be affirmed for the following reason:

"That both the defendants, the Commercial Trust Company and the Northern Pacific Railway Company, are adverse parties herein who did not join in the motion made herein for a new trial, and the record affirmatively shows that no notice of intention to move for a new trial, no motion for a new trial, nor any statement of the case on motion for a new trial was ever served upon them or either of them by the Lewiston & Southeastern Electric Railway Company, the party making the motion, nor did they waive any such service."

The appeal in this case is taken by both the Lewiston & Southeastern Railway Company and the Commercial Trust Company. The Northern Pacific Railway Company was dismissed from this case, under a stipulation of counsel entered into during the trial to the effect that the interest of the Northern Pacific Railway Company in the real property involved should not be adjudicated in this action. This stipulation was respected by the trial court, and no findings were made with reference to the Northern Pacific Company, nor was any judgment rendered for or against it.

The statement of the case contains a notice of intention to move for a new trial, upon the part of the Lewiston and Southeastern Railway Company, which shows service to have been made upon the attorney for the plaintiffs, respondents herein. Whether service was made upon the Commercial Trust Company does not appear from the...