Tiger Placers Co. v. Fisher, 13870.
| Decision Date | 20 January 1936 |
| Docket Number | 13870. |
| Citation | 54 P.2d 891,98 Colo. 221 |
| Parties | TIGER PLACERS CO. v. FISHER. |
| Court | Colorado Supreme Court |
Rehearing Denied Feb. 24, 1936.
In Department.
Suit by Bruce Fisher against the Tiger Placers Company, wherein defendant filed a cross-complaint. To review a judgment for plaintiff, defendant brings error.
Affirmed.
Appeal from District Court, Summit County; William H. Luby, judge.
Warwick M. Downing and Richard Downing, both of Denver, for plaintiff in error.
Barney L. Whatley, of Denver, for defendant in error.
A suit for wages and foreclosure of mechanic's lien. Judgment was given as prayed, and error is assigned.
Fisher employed by the Tiger Placers Company, alleged that a certain sum was due him for labor performed, in aid of which he filed statement of lien, seeking to charge therewith a dredge boat and other property of the company. As assignee of ten like claims, he made similar allegations. Issues were formed, but other than as to the eleventh cause of action, the right of lien as to all the causes, and the company's cross-complaint, judgment entered conformably to stipulation of counsel in open court.
Pursuant to notice, the cause was set to be tried October 9, 1935. On that day the company sought continuance, and the matter was reset for October 24, 1935. The company again moved for continuance, showing the indisposition and absence of its president. The motion was denied. The statute contemplates speedy disposition of causes of this nature. C.L. 1921, § 6454; Howard v. Fisher, 86 Colo. 493, 519, 283 P 1042. The affidavit of the absent president does not show knowledge of facts having to do with issues not disposed of by stipulation. Besides, the ruling of the court on the motion to continue was predicated in part of the agreement of Fisher's counsel that such affidavit, so far as pertinent, material, and competent should be considered as the evidence of the absent official of the company. We cannot think the court abused its discretion in refusing continuance. To the contention that the president was needed for consultation purposes, we think sufficient answer is that its regular counsel and secretary, both of the company's directorate, as well as its engineer and other technical employees, attended the trial. The record does not indicate that counsel for the company was unadvised or overlooked anything as the trial proceeded.
It is contended that the court erred in refusing a jury trial on the company's cross-complaint for damages. Since the complaint was in equity, neither party was entitled to trial by jury. Neikirk v. Boulder Nat. Bank, 53 Colo. 350, 127 P. 137. While the cross-complaint presented issues determinable at law, the complaint fixed the nature of the suit and by what arm of the court it should be tried. Selfridge v. Leonard-Heffner Co., 51 Colo. 314, 117 P. 158, Ann.Cas.1913B, 282.
That a dredge is regarded as subject to lien, see Colorado Gold Dredging Co. v. Stearns-Roger Mfg. Co., 60 Colo. 412 153 P. 765. It is not seriously urged that Fisher and his assignors...
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