Weeter Lumber Co. v. Fales

• Decision Date: 28 September 1911
• Parties: WEETER LUMBER COMPANY, a Corporation, Respondent, v. W. D. FALES, Appellant, and E. E. MEAD et al., Defendants and Respondents
• Court: Idaho Supreme Court

118 P. 289

20 Idaho 255

WEETER LUMBER COMPANY, a Corporation, Respondent, v. W. D. FALES, Appellant, and E. E. MEAD et al., Defendants and Respondents

Supreme Court of Idaho

September 28, 1911

MECHANICS' LIENS-MATERIALMEN-MOTION TO DISMISS APPEAL-SERVICE OF NOTICE OF APPEAL-UNDERTAKING ON APPEAL-DEMURRER TO COMPLAINT-NOTICE OF LIEN-SUFFICIENCY OF-DATE OF COMPLETION OF CONTRACT-PAYMENT TO CONTRACTOR BY OWNER-FILING OF LIEN THEREAFTER-FINDINGS-SUFFICIENCY OF-JUDGMENT IN REM.

(Syllabus by the court.)

1. Where the same counsel is attorney for three defendants and only one of them appeals, the notice of the appeal need not be served upon the nonappealing defendants or their counsel. (Sullivan, J., dissenting.)

2. The undertaking on appeal held sufficient.

3. Held, that it was not error for the court to overrule the demurrer.

4. The claim of lien held sufficient.

5. Where there is a substantial conflict in the evidence on which any finding of fact is based, such finding will not be disturbed on appeal.

6. Under the mechanics' lien law of this state, the materialman or laborer is given an absolute lien upon the structure or improvement in which the material was used or the labor done, if he files his claim of lien within the time required by law, and the payment by the owner of the full contract price, to the contractor, prior to the date of the filing of the lien, is no defense in an action to foreclose such lien.

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.

Action to foreclose a mechanic's lien. Judgment for the plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

W. G Bissell, and D. W. Zent, for Appellant.

There is absolutely no contract set out in the claim of lien; the terms upon which the material was sold, the time in which it was to be paid for, the conditions of the contract are nowhere mentioned. This omission was fatal. (Hooper v Flood, 54 Cal. 218; White v. Mullins, 3 Idaho 434, 31 P 801.)

In this action the plaintiff sought and has obtained a personal judgment against the defendant Fales. It is a well-settled principle of law that an action for the foreclosure of a mechanic's lien is purely an action in rem. (Valley Lbr. Co. v. Nickerson, 13 Idaho 682. 93 P. 24.)

The court below followed the Pennsylvania system of mechanics' liens, which we contend is, under the statutes of Idaho, not the law in this state. (Rockel, Mechanics' Liens, secs. 65, 72; 27 Cyc. 89.)

Sec. 5110, Rev. Codes, upon comparison, will be readily seen to be a re-enactment of the early California law; hence it is to that state that we must turn for guidance. its decisions having already been recognized as binding by this court upon this subject. (Bradbury v. Idaho & Ore. Land Imp. Co., 2 Idaho 239 (221), 10 P. 620; White v. Mullins, 3 Idaho 434, 31 P. 801.)

"The owner of a building is only liable to a materialman for the amount remaining due the original contractor upon the date when the lien was filed." (Knowles v. Joots, 13 Cal. 620; McAlpin v. Duncan, 16 Cal. 127; Bowen v. Aubrey, 22 Cal. 571; Blythe v. Poultney, 31 Cal. 233; Dore v. Sellers, 27 Cal. 593; Renton v. Conley, 49 Cal. 185; Wells v. Cahn, 51 Cal. 423; Dingley v. Greene, 54 Cal. 333; McKue v. Jackmon, 7 Cal.App. 703, 95 P. 673.)

James R. Bothwell, for Respondents.

By the words "adverse party" as used in sec. 4808, Rev. Stat., relative to appeals, is meant every party who is interested in the subject matter of the appeal and will be affected by a modification or reversal of the judgment or order appealed from, irrespective of whether he be plaintiff, defendant or intervenor. (Aulbach v. Dahler, 4 Idaho 522, 43 P. 192; Titiman v. Alamance Min. Co., 9 Idaho 240, 74 P. 529; Lewiston Nat. Bank v. Tefft, 6 Idaho 104, 53 P. 271; Lydon v. Godard, 5 Idaho 607, 51 P. 459; Diamond State Bank v. Van Meter, 18 Idaho 243, 108 P. 1042, 32 L. R. A., N. S., 34.)

A careful examination of the lien law of California will develop many and quite important differences between it and the lien laws of Idaho. (Colorado Iron Works v. Riekenberg, 4 Idaho 262 (266), 38 P. 651.)

The California statute conforms in its salient features to the New York system, although if certain requirements are not complied with, the subcontractor or materialman has a lien for the value of what he has done or furnished irrespective of the contract price. (Macomber v. Bigelow, 126 Cal. 9, 58 P. 312; Coss v. MacDonough, 111 Cal. 662, 44 P. 325; Davies-Henderson Lumber Co. v. Gottschalk, 81 Cal. 641, 22 P. 860; Greig v. Riordan, 99 Cal. 316, 33 P. 913; Willamette Steam Mills Co. v. Los Angeles College Co., 94 Cal. 229, 29 P. 629.)

The supreme court of Montana has passed upon a statute similar to ours, and holds that a subcontractor or materialman has a direct lien irrespective of the contractor. (Merrigan v. English, 9 Mont. 113, 22 P. 454, 5 L. R. A. 837; Duignan v. Montana Club, 16 Mont. 189, 40 P. 294.)

A case similar to the one at bar has been before the supreme court of this state. (Valley Lbr. & Mfg. Co. v. Nickerson, 13 Idaho 682, 93 P. 24; see, also, Steltz v. Armory Co., 15 Idaho 551, 99 P. 98, 20 L. R. A., N. S., 872; Sanders v. Keller, 18 Idaho 590, 111 P. 350; Jones v. Balsley, 27 Okla. 220, 111 P. 942; Smith v. Wilcox, 44 Ore. 323, 74 P. 708, 75 P. 710; Beach v. Stamper, 44 Ore. 4, 102 Am. St. 597, 74 P. 208; Bowen v. Phinney, 162 Mass. 593, 44 Am. St. 391, 39 N.E. 283; Seeman v. Biemann, 108 Wis. 365, 84 N.W. 490; Albright v. Smith, 3 S.D. 631, 54 N.W. 816.)

SULLIVAN, J. Stewart, C. J., concurs. AILSHIE, J., Concurring in Part and Dissenting in Part.

OPINION

SULLIVAN, J.

This action was brought to foreclose a materialman's lien on a building and two town lots in the city of Gooding. The defendant Mead and the Gooding State Bank, defendant, failed to answer. The defendant Fales and the Gooding Townsite Company answered. The cause was tried and findings of fact were made and judgment entered in favor of the Lumber Company for $ 719.82, with interest, attorneys' fees and costs, and in favor of the Gooding Townsite Company for the sum of $ 500, that being the balance due to said company for the purchase price of said town lots, Nos. 19 and 20, in block 38 of said village of Gooding. The sale of said building and town lots was ordered and out of the proceeds of such sale, first the amount due the townsite company was directed to be paid, and thereafter the amount found due to the lumber company, with costs, etc. The appeal is from the judgment. A motion has been made to strike out a certain part of the record and to dismiss the appeal.

The motion to dismiss is made on two grounds: First, that the notice of appeal was not served on the defendants Mead and the Gooding Townsite Company as required by sec. 4808, Rev Codes, they being adverse parties and would be affected by a reversal or modification of the judgment. The judgment entered was in favor of the defendant, the Gooding Townsite Company, for $ 500, with interest thereon, and against Mead and Fales for the sum of $ 719.82, together with interest thereon and an attorney's fee of $ 100. It is clear to me that if the judgment is reversed, Mead and the Gooding Townsite Company, who were not served with a notice of appeal, might be very materially affected, and that they are clearly adverse parties within the provisions of said sec. 4808. This court held in Titiman v. Alamance Min. Co., 9 Idaho 240, 74 P. 529, that notice of appeal must be served on each party whose interest would be affected by a modification or reversal of the judgment appealed from, whether such party be plaintiff, defendant or intervenor, or whether he appears or is in default. In Lewiston National Bank v. Tefft, 6 Idaho 104, 53 P. 271, this court held that where one of two parties appeals from a joint judgment of foreclosure rendered against both, the other defendant is an adverse party to the appeal and as such is entitled to notice. (See, also, Lydon v. Godard, 5 Idaho 607, 51 P. 459, and the Diamond State Bank v. Van Meter, 18 Idaho 243, 108 P. 1042, 32 L. R. A., N. S., 34.) In the latter case it was held that where a joint judgment is rendered against two or more parties and an appeal is taken by one of the parties against whom such joint judgment is rendered, then all other parties against whom such joint judgment was rendered are adverse parties, and notice of appeal must be served upon each in order to give this court jurisdiction. In some of the cases above cited the same attorney was attorney for the appealing party or parties in the trial court as well as for those who did not appeal, and there has been no distinction made by the decisions of this court upon the question under consideration, whether the attorney who took the appeal for one of the defendants was also attorney for other defendants who refused to appeal, or whether such parties were represented by different attorneys, and as I view the matter, in order to give this court jurisdiction of such an appeal, the party taking the appeal, or his attorney, must serve the notice of appeal on the respondent and each of his codefendants who refused to appeal, who would be affected by a reversal or modification of the judgment. And simply because the attorney for the three defendants in the case at bar took an appeal for one of them and not for the others, that did not relieve him from serving the notice of appeal upon the two defendants for whom he was attorney in the trial court and who refused to appeal. It is no answer to say that he would have to serve the notice of appeal on himself, for he would not in fairness to the nonappealing defendants serve the notice on himself, but would serve it upon the...