Spangler v. Green

• Decision Date: 18 November 1895
• Citation: 21 Colo. 505,42 P. 674
• Parties: SPANGLER v. GREEN et al.
• Court: Colorado Supreme Court

42 P. 674

21 Colo. 505

SPANGLER v. GREEN et al.

Supreme Court of Colorado

November 18, 1895

Appeal from district court, Arapahoe county.

Actions by Mosier T. Green and others against Jane T. Spangler and others to enforce mechanics' liens. Plaintiffs had judgment, and defendant Jane T. Spangler appeals. Reversed.

Appellees Green and Fisher, partners as the Chicago Lumber Company, and Ackroyd and Brindle, as E. Ackroyd & Co., commenced their several actions in the district court of Arapahoe county against Woodbury and Page, partners as Woodbury & Co. principal contractors, and against the appellant, Jane T Spangler, as owner, to recover judgments against Woodbury &amp Co., which they sought to have established under the mechanic's lien act as liens upon Mrs. Spangler's property for materials furnished and labor performed by said appellees, respectively, as subcontractors, under contracts entered into by them with Woodbury & Co. for the construction of a dwelling house and barn which Woodbury & Co. had contracted to build for the appellant. From the complaints in these two separate actions it appears that the contract which Woodbury & Co. made with the appellant, as well as the subcontracts made by the Chicago Lumber Company and Ackroyd &amp Co. with Woodbury & Co., were entered into and the performance thereof begun prior to the passage of the amendments of 1889 to the mechanic's lien act of 1883, but that said contracts were not fully performed until after said amendments went into effect. In neither of the complaints was there an allegation that at the time of the filing of the notices of lien there was anything due from the appellant, Spangler, to Woodbury & Co. upon the contract between them. A demurrer filed by the appellant to these complaints was overruled by the court, whereupon she filed her answer, substantially denying all of the allegations of the complaint, and alleging that, prior to the filing by the plaintiffs of their lien statements, appellant paid to Woodbury & Co., with the exception of a small balance, the full contract price for constructing such buildings. Before the beginning of the trial the counsel for Mrs. Spangler in open court stated that such balance due from her to Woodbury & Co. upon the contract was the sum of $1,250.07, which she tendered and paid into court, to be applied by the court upon the said demands, as the court might direct,--these two actions having been consolidated for trial as one action. The trial resulted in judgments against Woodbury & Co. in favor of the Chicago Lumber Company in the sum of over $6,000, and in favor of Ackroyd & Co. in the sum of over $1,000, and a lien upon the property of the appellant was decreed to the extent of $2,047.69 under the Chicago Lumber Company's judgment, and of $939.45 under the Ackroyd judgment. From this decree, in so far as a lien was established against the property of appellant, she has appealed to this court.

Sam. P. Rose and S.D. Walling, for appellant.

Benedict & Phelps and Williams & Whitford, for appellees.

CAMPBELL J. (after stating the facts).

The objection interposed by the appellees to the jurisdiction of this court to entertain the appeal must first be disposed of before considering the assignments of error. Section 1, p. 118, Sess. Laws 1891, provides that no appeal to the supreme court shall lie to review the final judgment of any inferior court unless the judgment exceeds $2,500, exclusive of costs; provided, this limitation shall not apply where the matter in controversy relates to a franchise or freehold, or where a construction of the state of federal constitution is necessary to a determination of the case. The proceeding to enforce a mechanic's lien does not involve a freehold. McCandless v. Green, 20 Colo. 519, 39 P. 64. To warrant the assumption of jurisdiction, the amount of the judgment in a case like the one at bar must be determined by the amount of the judgment in favor of each lien claimant, and not the aggregate amount of the several judgments; and, as neither of the several judgments here amounts to $2,500, jurisdiction on this ground does not attach. Mining Co. v. Gallagher, 5 Colo. 23; Piper v. Jacobson, 98 Ill. 389; Farwell v. Becker, 129 Ill. 261, 21 N.E. 792; Aultman & Taylor Co. v. Weir, 134 Ill. 137, 24 N.E. 771; Bank v. Stout, 113 U.S. 684, 5 S.Ct. 695. Evidently, therefore, the only ground, if any, which invokes the jurisdiction of this court to review this judgment and decree must be one of the constitutional questions referred to. The appellant claims that the court below must necessarily have based its judgment upon the construction given by it to section 11 of article 2 of our state constitution, prohibiting all laws impairing the obligation of contracts, and laws retrospective in their operation; and section 10 of article 1 of the federal constitution, relating to the same matters; or, rather, that its judgment can be upheld only by giving to the amendments of 1889 to the mechanic's lien act of 1883 a retrospective operation, which necessarily violates the constitutional provisions mentioned.

After a careful examination of the record, we are satisfied that the judgment of the district court is wrong, and for its only support must rest upon the ruling made to the effect that the rights of the parties to this controversy are to be measured by the amendments of 1889. The rights of the appellees in this case accrued under contracts made before the passage of these amendments, and, if their contract rights were materially changed to their injury by the later law, the former, and not the later, law must govern. We are not unmindful of the doctrine that in mere remedies there can be no vested right; but where, under the guise of giving a new or different remedy,...