Doane v. Clinton

| Utah | Jun 15, 1880

BoREMAN, J.,

delivered the opinion of the court:

This is an action to foreclose- a mechanics’ lien upon property of defendant, Clinton. Z. Snow had a claim against the property, and filed his answer. None of the other defendants filed any answer. The judgment in the court below being for respondents, the defendant, Snow, appealed to this court.

It is urged by the appellants with great persistency, that the word “ persons,” in the mechanics’ lien law of this Territory, does not include corporations. O. L. 386, § 1179, et seg.

In section 2 of “An act concerning the Laws of Utah,” approved February 20, 1874 (O. L. § 5, p. 78), it is said that “ person” may include partnership, corporation or company. As this statute has special reference to the meaning of words in the “ Laws of Utah,” it disposes of the objection urged by appellants.

It is said that the notice of intention to hold the lien is insufficient, in that it does not state the time when the money was due or to become due. The statute says that the person must file “ a notice of his intention to hold a lien upon such building for the amount due or to become due, specifically setting forth such amount, and containing a description of the building, etc.” There is no requirement in these words that the time when the money was due or to become due should be stated. The notice must show the “ amount due or to become due.” In the notice in the case under consideration the exact “amount due” is given and “specifically set forth.” The notice is certainly sufficient.

The respondents took two negotiable promissory notes for the amount of their claim, one due in three months and the other in six months, and both dated on the 15th January, 1875, and both surrendered in court to be cancelled. The last item of the account bore date 12th January, 1875. It is claimed that by accepting these notes, the respondents received payment of the account. This certainly is not the law, where no intention to that effect is shown.

We presume the appellants meant to say that the respondents waived their right to the lien by taking the notes. Our statute says that the lien can be enforced by suit began at any time within one year after the completion of the building. Both notes fell due within the year, and there does not appear to have been any intention to relinquish the lien. There was, therefore, no waiver of the right to file the lien or to enforce it, Securities are in their nature cumulative, and there is no reason why the court should consider that by taking one a party thereby released another, unless there was some stipulation or understanding that such should be the case. McMurry v. Taylor, 30 Mo. 263" court="Mo." date_filed="1860-03-15" href="https://app.midpage.ai/document/mcmurray-v-taylor-8000840?utm_source=webapp" opinion_id="8000840">30 Mo. 263; Ashdown v. Woods, 31 Mo. 465" court="Mo." date_filed="1862-03-15" href="https://app.midpage.ai/document/ashdown-v-woods-8001036?utm_source=webapp" opinion_id="8001036">31 Mo. 465; Green v. Ely, 2 Greene, (Iowa,) 508; Mix v. Ely, Ibid. 513; Kinsley v. Buchanan, 5 Watts, 118" court="Pa." date_filed="1836-05-15" href="https://app.midpage.ai/document/kinsley-v-buchanan-6311560?utm_source=webapp" opinion_id="6311560">5 Watts, 118.

We do not think that any different view is borne out by the authorities cited by appellants.

As to the proof of the existence of the Sierra Nevada Lumber Company, as a foreign corporation, we deem it sufficient. The articles of incorporation were introduced, and also the California statutes upon the subject, as appears by the proposed statement offered by the appellant to be proven in this court. But we are not authorized to consult that statement, but as to this fact and the other facts found by the referee, we are concluded by the referee’s Endings.

The same remarks are applicable to the other objection urged by the appellant as to the power of the trustees to act. The findings showed that the parties who are respondents were the “trustees” of that corporation at the time of its dissolution, “ with power as such to settle its affairs.” This court is bound by that finding, no motion for new trial having been made.

The appellant files in this court his petition “ to prove exceptions, etc.,” as he terms it. It appears by this petition that the appellant filed his statement on appeal, and did what was necessary to be done to entitle him to have the same approved by the judge of the District Court, but the court held that he was not entitled to it, and refused therefore to certify it.

The report of the referee was filed on the 18th day of February, 1877, exceptions taken thereto by the appellant, and the court refused to allow the appellant to file his notice of motion for new trial. This might have been error, but the notice required by law was a notice to the opposite party, which could have been given out of court. But the point is immaterial, as the appellant does not claim that he ever prepared or offered a statement on motion for new trial. lie, however, claims that his statement on appeal should have been approved by the court and certified.

The section of the Civil Practice Act respecting statements on appeal (C. L. § 1551, p. 493), provides that within twenty days after judgment or order appealed from, the appellant should file a statement with the clerk, which statement “ shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified and no more,” and it “ shall be presented to the judge or referee who tried or heard the case,” and be settled by him. It is not claimed that the proposed statement was ever presented to the referee who tried the case, and of course he had no opportunity to approve it or to reject it. Its presentation to the judge who presided in the court is not sufficient. The fact that it was never presented to the referee, is of itself sufficient to exclude it. But if its presentation to the judge were sufficient, the judge could not go behind the findings of the referee. The facts as found by the referee must be conclusive, unless there be a motion for new trial. The findings, if made by the court, would have been conclusive upon the parties, without a motion for new trial, and the approval and allowance of the statement by the court would not have been proper.

The petition is therefore denied, and the judgment of the court below upon the case is affirmed, with costs.

Schaeffer, C. J., and EmeRSON, J\, concur.