28 Colo. 262 | Colo. | 1901
delivered the opinion of the court.
There are eighteen assignments of error attacking every step in the proceedings from the issuance of the summons to the rendition of the judgment, except that the attachment proceedings are conceded to have been regular but for the previous consolidation of the cases in which the,attachments were issued with cases numbered 725 and 726. We are of opinion that the plaintiff in an action to enforce a mechanic’s lien may abandon his claim to a lien at any time before judgment, and proceed by attachment as in any action on a contract; and where several such parties have in the same court caused attachments to be levied upon the same property, in suits against the same defendant, it is the duty of the court, upon application for that purpose, to cause the cases to be consolidated under the provisions of the attachment act.
The other assignments of error will be substantially determined, we think, by a decision of the following:
1. That the amount demanded in original case No. 729 is in excess of the jurisdiction of the court.
2. That no summons was issued in consolidated case No. 725.
3. That the complaints in Nos. 725 and 726 do not show any right in the plaintiffs to a lien upon the assigned claims,
4. That the court erred in overruling the motion to quash the summons in each of the cases.
5. That the judgments rendered are excessive and double; and, having been rendered on the same day, are presumed to have been rendered at the same time, and must stand or fall together.
The objection that the amount demanded in No. 729 is in excess of the jurisdiction of the court, is based upon the proposition that the $250.00 asked as an attorney’s fee in that case is part of the “debt, damage, or claim” of the plaintiff, within the provision of the constitution limiting the jurisdiction of county courts. The statute under which the case
The statute applicable to mechanic’s lien cases does not require the issuance of an alias summons under the facts shown in consolidated case No. 725.
The objections to the sufficiency of the complaints in original cases 725 and 726 are decided adversely to the contentions of the plaintiff in error in the case of The Rialto Mining Co. v. Lowell, 23 Colo. 253, except as to the objection that the complaints should have alleged in terms an assignment “of the right to file a lien for the demands in the several complaints alleged to have been assigned to the plaintiffs.” The complaints allege the assignment to the plaintiffs of the “claim and demand” of the person entitled to perfect a lien. We think the assignment of the claim carries with it the right to the lien.
The most difficult question in the case is that raised upon the motions to quash the summonses. The returns of the sheriff upon these summonses were made during the period from February 8, to February 23; and, owing to a successful attempt on the part of the plaintiff to quash the first publication, publication was not made until about June 14, a period of more than four months. A new affidavit was, however, made in each case upon the day that the order was obtained, and the publication followed immediately. Section 41 of the code, as amended April 5, 1893, laws of 1893, p. 77, provides that: “Service by publication shall be allowed only after summons issued and return thereon made
The judgments rendered in the attachment cases (No. 4020 here) are not excessive; the judgments rendered in the consolidated case No. 725 (No. 4019 here) are both excessive and double, one thousand dollars thereof being for attorney’s fees, and several thousand dollars for the causes included in the attachment cases. It becomes important therefore, to ascertain when these judgments were rendered.' The record shows that they were rendered on the 15th day of February, 1898. It is contended that the court will not recognize a fraction of a day, and that it cannot be ascertained from the record which of these judgments — the judgment enforcing the mechanics’liens or the judgment sustaining the attachments — was rendered first. The record kept by the clerk must guide us in determining this question. It is the clerk’s duty to enter judgment as and in the order in which the court pronounces it; and it will be presumed that the clerk has so performed his duty. It appears from the record that on pages 8 and 4 of book 7 of the records of ' the court, the judgment was entered in the cases consolidated as No. 729, being the attachment cases; and on pages 6, 7 and 8 of the same record, the judgment was entered in consolidated case No. 725, being all the cases. It appears from the record that the judge acted as his own clerk, and the same presumption must apply to him.
In the absence of proof to the contrary, it must be presumed that the judge rendered the judgments in these cases in the order in which they appear in the record; namely, that in the four cases in which attachments were issued he rendered judgment and ordered special execution; and in the six cases, including the four in which judgment has been rendered, he subsequently rendered judgment and ordered the property sold to satisfy the mechanic’s liens.
Counsel for the defendants in error concede that these two judgments cannot both stand, and have offered to remit in consolidated case No. 725 the amount of the attorney’s fees and the entire amount included in the judgment for the plaintiffs in the cases originally numbered 729, 730, 731 and 732. It appears from the record ■ that an execution was issued on the judgment in consolidated case No. 725, property was sold under the execution and a certificate of sale given by the sheriff. After property has been sold upon execution it is to late to remit, and it has been so held in the case of Miller v. Glass, 11 Ill. App. 560.
No. 4019 is reversed for the errors pointed out, and remanded for further proceedings, ■
No. 4020 Affirmed.
No. 4019 Reversed.