108 P. 353 | Mont. | 1910
delivered the opinion of the court.
This action was brought by plaintiff to recover of defendants Montana Gold Mountain Mining Company (hereafter referred to as the company), John MacGinniss, B. T. Spaulding and James Breen for services performed by him as a laborer, at their instance and request, between August 1, 1907, and Novem
1. When the record was filed in this court, counsel for plaintiff submitted a motion to affirm the order denying the motion for a new trial, on the ground that the notice of intention had not been served upon all the adverse parties, and because it had not been served in time. They also submitted a motion to. dismiss the appeal from the judgment, on the ground that the notice of appeal had not been served upon all the adverse parties. Disposition of these motions was deferred until hearing upon the merits, because a determination of them required an examination of the entire record. Now that we have made this examination, aided by the argument and admissions of counsel, we have concluded that the motion should be denied.
Proceedings on the motion for a new trial were first instituted by MacGinniss by serving his notice of intention after the decision was made, but before entry of judgment. These proceedings were premature. Under the statute, a party intending to move for a new trial may do so by serving his notice within ten days after the notice of entry of judgment, but not before. (Revised Codes, sec. 6796.) When the bill of exceptions first prepared in the case was submitted to the trial judge for settlement, it was found by counsel for MacGinniss that the notice, of intention had been served prior to the entry of judgment. Thereupon, .having then for the first time knowledge of the entry of judgment, counsel abandoned the proceedings as nugatory, and served and filed a new notice. The proceedings on the motion based upon the second notice were timely; for, though formal notice of the entry of judgment may be waived by the moving party by instituting his proceedings in support of his motion without it, such waiver is not properly imputable to one who inadvertently institutes his proceedings before the time at which he may do so. Both the notice of intention and the
2. On the merits, the first contention is that the court erred in admitting in evidence the notices of lien, for the reason that they do not describe the property upon which the work was done, nor properly indicate the character of the work. It is argued that there are three classes of liens claimed, to-wit: Certain ones for work done exclusively in the mine; others for work done - exclusively in the construction and operation of the mill; and still others for work done both in the mine and in the mill; and that, since the notices do not segregate the items for work done upon the different parts of the property and specifically describe such parts, they furnish no basis to support a claim of lien, either upon any specific part of the property or upon the whole of it as a unit. It is also said that the statute does not grant a lien for repair work, or for the cutting of cordwood, and that certain of the claims for work done in this behalf are made without authority of law. These contentions will be better understood if a brief statement be made of the circumstances under which the lienors were employed and the situation and character of the property upon which the wnrk was done.
The company and MacGinniss were in 1906 owners as tenants in common of a contiguous group of mining claims, seven in all. Defendant Spaulding, having in the latter part of that year obtained an option from the stockholders of the company to purchase all of its capital stock held by them if the claims should
The contention is that, the plaintiff and his assignors having failed to specify in the accounts attached to their respective notices exactly the amount due them for each kind of work done by them, whether it was construction work or upon repairs, or in mining or road building, and to limit the claim of lien to the specific portion of the property upon which the work was done, the notices are insufficient, and should therefore have been excluded from the evidence. The statute declares: “See. 7290. [Revised Codes.] Every mechanic, miner, machinist, architect, foreman, engineer, builder, lumberman, artisan, workman, laborer, and any other person performing any work and labor upon, or furnishing any material, machinery or fixture for any building, structure, bridge, flume, canal, ditch, aqueduct, mining claim, quartz lode, tunnel, city or town lot, farm, ranch, fence, railroad, telegraph, telephone, electric light, gas or water works or plant, or any improvements, upon complying with the provisions of this chapter, for his work or labor done, or material, machinery or fixtures furnished, has a lien upon the property upon which the work or labor is done, or material furnished.” It is apparent from even a casual reading of this provision that the legislature intended to provide for a lien in favor of any person who bestows labor upon any character of property as'such, or by whom material is furnished for the improvement of the property. That this is so is clear from the declaration at the close of the section that such person “has a lien upon the property upon which the work or labor is done, or material furnished.” Under other provisions, the extent to which property, other than mines, is affected by the lien, is defined and limited. If the structure and land upon which it is situated both belong to the same person, the lien extends to the lot or lots occupied by the structure, if within a city or town, or to one acre of land if it is outside a city or town. If the interest of the person owning the structure is less than the fee, the lien affects his interest only. (Revised Codes, see.
The rule declared in these eases was evidently had in mind by the person who prepared the notices involved in this case. The plaintiff and each of his assignors claimed a lien upon the mill and the claims upon which it is situated; that is, upon the ■Clara Jurgens, Placer Lot No. 42, and the Central Lode. One of the notices does not mention specifically the Central Lode, but, as already stated," this claim falls entirely within the boundaries of Placer Lot No. 42, and in our opinion the description of the latter is sufficient to indicate the area within which the work was done, though this claim is not specifically' mentioned. Evidently, also, there was had in mind at the time the notices were prepared the idea that, since the work was done for the
Here the purpose had in view by Spaulding, Breen and MacGinniss was the exploitation and sampling of the entire group of claims. All the work done, including the erection of the mill, was with that end in view. The. mill was apparently intended to be a permanent structure, and to become a part of the unit property, made up of the entire group. The workmen were all employed upon the enterprise, whether in construction work as such, or in repairs and alterations, or in mining work, or in building roads, or in cutting cordwood. The entire group constitutes a consolidated claim, and the work of the whole enterprise was expended upon it. The statute does not mention repairs and alterations; yet it takes labor to accomplish them. Touching the labor expended in building roads and preparing fuel belonging to the owner for use in producing power to carry on his enterprise, it may be said it is as much labor done on the claim as is that expended in the use of a pick or hammer and drill in the workings of the mine above or below ground. The same may be said of operatives in the mill whose duty requires them to keep the machinery in order and to clear away debris which accumulates from time
It is argued in this connection that, since the evidence shows, that a portion of the work done by some of the men was done upon the Mabel Beal claim and others in the group not included among those described in the notices, and the value of this portion of the work cannot be definitely ascertained, all lien claims affected by this condition should have been excluded. This argument is fully answered by the statement that the plaintiff and each of his assignors was entitled to a lien upon the entire group, including the seven claims, and that the defendant cannot complain that they claimed less than they were entitled to and asserted their right as to only three claims of the group. If they had a right of lien upon the whole group, they had the same right as to each claim constituting the group. The work done, whether upon one or the other of.
3. The foregoing discussion disposes of the contention that the court erred in rendering judgment for plaintiff. The evidence fully establishes the fact that the work was done at the instance of Spaulding and MacGinniss, and that they are personally liable for the amounts claimed to be due. Whether they were technically partners or not, the work was done at their instance and in part paid for by them. ' Neither the company nor the bank had any connection with the employment of any of the men.
From the facts detailed in the statement heretofore made, it is apparent that some of the lien claimants were engaged in construction work upon the mill exclusively. Those so engaged might have proceeded upon the theory that Spaulding and MacGinniss were lessees, and claimed their liens against the mill only and enforced them by sale of it under the provisions of section 7294, supra. It might plausibly be argued that, since they did not pursue this course, but elected to treat the mill as a part of the realty, neither they nor the rest of the claimants who had no such right, because they did other kinds, of work, ought to have ordered a sale of the mill as a whole as the judgment directs. The company, which is the owner of the other interest in the property, is the only person who could complain of this feature of the judgment. Since this is so, and since it did not appeal, we must presume that it is satisfied with the result. The judgment is clearly correct in ordering the sale of the MacGinniss interest in the realty, including his interest in the mill.
The judgment and order are affirmed.
Affirmed.
I am unable to concur in that portion of the foregoing opinion which deals with labor performed upon the Mabel Beal claim.