Shaw v. Martin

• Decision Date: 08 September 1911
• Citation: 20 Idaho 168,117 P. 853
• Parties: R. S. SHAW, Respondent, v. MARTHA MARTIN et al., Appellants
• Court: Idaho Supreme Court

117 P. 853

20 Idaho 168

R. S. SHAW, Respondent, v. MARTHA MARTIN et al., Appellants

Supreme Court of Idaho

September 8, 1911

MECHANIC'S LIEN-DESCRIPTION OF PREMISES-ATTORNEYS' FEES-LACHES-SERVICE OF SUMMONS - APPEARANCE-SUFFICIENCY OF COMPLAINT.

(Syllabus by the court.)

1. Rev Codes, secs. 4138 and 4139, which provide that civil actions are commenced by filing a complaint, and that summons may issue thereon at any time within one year thereafter, apply to actions brought for the foreclosure of mechanics' liens, and with sec. 5118 provide the only limitations in the foreclosure of mechanics' liens, which are, first, that the proceedings must be commenced for the foreclosure of liens within six months after the claim of lien is filed and, second, that a summons may be issued at any time within one year after the commencement of the action.

2. An action for the foreclosure of a mechanic's lien may be dismissed where reasonable diligence is not shown in the service of the summons, and the trial judge has the discretion to determine from the proof offered whether the plaintiff is guilty of laches, or has shown due diligence in making such service.

3. The question whether reasonable diligence has been shown is one of fact and is to be determined by the trial judge upon the facts as they are presented, and the discretion of the trial judge will be determined by the same rule of law as is applied generally in cases where discretion is vested in the trial court, and if there is an abuse of such discretion his action will be reversed; if there is not, it will be affirmed.

4. A complaint for the foreclosure of a mechanic's lien which describes in the lien the defendant's name as R. M Gambill, and in the complaint gives the initials of said defendant as R. L. Gambill, and alleges that R. M. Gambill and R. L. Gambill is one and the same person, and that the true and correct name is R. L. Gambill, and it does not appear that the defendants are or could be in any way misled or deceived by such error in the initials of said defendant does not make a variance between the complaint and the lien, and does not affect the validity of the claim or the sufficiency of the complaint.

5. A claim of lien which describes property as "commencing at the intersection of the middle line of Eighth street and Ada street in said Boise City; running thence south along the center line of said Eighth street 85 feet; thence west 142 feet; thence north 85 feet to the center line of Ada street; thence east 142 feet to the place of beginning," is a sufficient description of such property, as the court will take judicial notice that Boise City is in Ada county, state of Idaho.

6. Under the statutes of this state an attorney's fee may be allowed and recovered in an action to foreclose a mechanic's lien, and the statute providing for the same is constitutional.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

An action to foreclose a mechanic's lien. Judgment for plaintiff. Defendant appealed. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

P. E. Cavaney, for Appellants.

It does not seem tenable that under the general laws of this state in regard to the commencing of civil actions one may file his complaint and not have summons issued until the last day of the time allowed by sec. 4139, Rev. Codes, in which to have summons issued, and then after summons does issue wait an indefinite time to suit his own convenience and pleasure to have summons served and returned. Statutes of this kind should be strictly construed against parties attempting to delay the rightful purpose of the law and machinery of the court. The court in cases of this kind should strike the complaint from the files and dismiss the cause of action. (Dupuy v. Shear, 29 Cal. 242; Lander v. Fleming, 47 Cal. 614; Elridge v. Kay, 45 Cal. 49; Grigsby v. Nampa Co., 36 Cal. 585, 95 Am. Dec. 213, Carpentier v. Minturn, 39 Cal. 450.)

All of these cases were decided prior to the amendment of the California statutes in 1889, and prior to the said amendments those statutes and the statutes of Idaho at the present time in this regard were identical.

The general statute in regard to the commencement of civil actions does not apply under the lien law. (Flandreau v. White, 18 Cal. 639; Green v. Jackson Water Co., 10 Cal. 374; Van Winkle v. Stow, 23 Cal. 458; Reynolds v. Page, 35 Cal. 300.) The statutes that were in force in California at the time that the above cases were decided are identical in this regard to the statutes of this state at the present time.

Defendant may appear specially for the purpose of moving to dismiss a defective summons, and if the court denies the said motion, a general appearance afterward does not waive the right or cure the error. (Lyman v. Milton, 44 Cal. 630; Kent v. West, 50 Cal. 185; Gray v. Hawes, 8 Cal. 562; Deidesheimer v. Brown, 8 Cal. 339.)

Our code is identical with the Washington statute in regard to a description of the property "sufficient for identification." (Bal. Ann. Code, sec. 5904.)

The Washington court has held that the description must not be so indefinite and loose as to be meaningless on the face of the lien. (Young v. Howell, 5 Wash. 239, 31 P. 629; Mount Tacoma M. Co. v. Cultum, 5 Wash. 294, 32 P. 95; Tacoma L. & N. Co. v. Kennedy, 4 Wash. 305, 30 P. 79.)

Variance between complaint and claim of lien is fatal. (Frazer v. Barlow, 63 Cal. 71; Malone v. Mining Co., 76 Cal. 578, 18 P. 772; Palmer v. Lavinge, 104 Cal. 30, 37 P. 775; Bristow v. Evans, 124 Mass. 548.)

Sec. 5121, Rev. Codes, authorizing the recovery of attorneys' fees in actions to foreclose mechanics' liens is unjust, unfair and unreasonable, and is class legislation and in violation of art. 1, sec. 18, of the constitution, and in violation of the fourteenth amendment. (Gulf etc. R. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666; Builders' Supply Depot v. O'Connor, 150 Cal. 265, 119 Am. St. 193, 88 P. 982, 17 L. R. A., N. S., 909, 11 Ann. Cas. 712; Stimson Mill Co. v. Nolan, 5 Cal.App. 754, 91 P. 262; Mannix v. Tryon, 152 Cal. 31, 91 P. 983; Mills v. Olsen (Mont.), 115 P. 33, and cases cited.)

S. H. Hays, and Paris Martin, for Respondent.

Whether or not this case had been prosecuted with due diligence rested in the discretion of the trial court. (Dupuy v. Shear, 29 Cal. 238, 243; Carpentier v. Minturn, 39 Cal. 450.)

"Appearance by demurrer is a general appearance, even though it is stated therein that the appearance is made simply and only for the purposes of the demurrer." (Sec. 4892, Rev. Codes; McDonald v. Agnew, 122 Cal. 448, 55 P. 125.)

A general appearance waives all defects and irregularities in notice, process or service, and gives jurisdiction over the person of the party who appears. (Rose v. Richmond etc. Co., 17 Nev. 25, 27 P. 1105; State ex rel. Mackey v. District Court, 40 Mont. 359, 135 Am. St. 622, 106 P. 1098.)

Courts will take judicial notice of the geographical position of the towns within their jurisdiction. (17 Am. & Eng. Ency. of Law, 906; Richardson v. Williams, 2 Port. (Ala.) 239; State v. Tootle, 2 Harr. (Del.) 541; Harding v. Strong, 42 Ill. 148, 89 Am. Dec. 415; Indianapolis etc. R. Co. v. Stephens, 28 Ind. 429; State v. Wabash Paper Co., 21 Ind.App. 167, 48 N.E. 653, 51 N.E. 949; Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330; Andrews v. Hoxie, 5 Tex. 171; Woodward v. Chicago etc. R. R. Co., 21 Wis. 309.)

The allegations of the complaint are in no respect inconsistent with the statements of the notice of lien. (Bloom's Law of Mechanics' Liens, p. 646; Union Lumber Co. v. Simon, 150 Cal. 751, 89 P. 1077.)

An attorney's fee is properly allowed in actions to foreclose mechanics' liens. (Thompson v. Wise Boy Min. Co., 9 Idaho 363, 74 P. 958; Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 P. 789.)

STEWART, C. J. AILSHIE, J. (Concurring Specially).

OPINION

STEWART, C. J.

This is an action commenced by R. S. Shaw, plaintiff, against "Martha Martin et al., and R. L. Gambill," for the foreclosure of a lien for material furnished by plaintiff to R. L. Gambill, a contractor, who made a contract with R. H. Martin and Martha Martin for the construction of a cement sidewalk upon premises alleged to belong to Martha Martin, described in the complaint as follows: "Situated in the City of Boise, County of Ada, State of Idaho, to wit: Commencing at the Northeast corner of Block 10, Resseguie's Addition to Boise City, thence west 115 feet; along North line of said block to alley; thence South along the line of said alley 55 feet; thence East 115 feet to West line of Eighth Street; thence North along West line of Eighth Street 55 feet to the place of beginning. "

A summons was issued and returned by the sheriff as having been served "on Mrs. Martha Martin, the defendant named in said summons, by delivering to her, the said defendant, Martha Martin, etc." The defendant, Martha Martin, by her attorney appeared and filed a motion as follows:

"Comes now the defendant, Martha Martin by her attorney, P. E Caveney, Esq., and appears specially and for the purpose of this motion only and moves the Honorable Court to quash the summons issued in the above-entitled cause of action and to strike the complaint in said action from the files and to dismiss said cause of action.

"Said motion is made upon the pleadings, papers and records in the said cause for the following reasons, to wit: That the said cause of action has not been prosecuted with diligence or in good faith for the reason that said complaint was filed on the 29th day of April, A. D. 1908, at 11:33 o'clock A. M. and summons was served on the 16th day of March, A. D. 1910.

"That said summons...