95 P. 827 | Idaho | 1908
This is an action to foreclose a laborer’s lien on a railway grade and right of way for labor performed and material furnished in grading and other work on the defendant’s right of way. Judgment was entered in favor
“If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same cannot be stayed, unless a written undertaking be executed on the part of the appellant with two or more sureties, to*725 the effect that during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed, or the appeal dismissed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which must be specified in the undertaking. "When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking must also provide for the payment of such deficiency. ’ ’
Taking up appellant’s first contention we find that the supreme court of California in passing upon statutes identical with our own in reference to supersedeas and stay bonds, has held that a judgment foreclosing a mechanic’s or laborer’s lien is not a money judgment within the meaning of sec. 942 of the Code of. Civil Procedure of California, which corresponds to see. 4810, Eev. Stat. of this state. (Central Lumber & Mfg. Co. v. Center, 107 Cal. 193, 40 Pac. 334; Kreling v. Kreling, 116 Cal. 458, 48 Pac. 383; Olsen v. W. H. Burch & Co., 1 Cal. App. 99, 81 Pac. 656.) We think the construction placed on these statutes by the California court is the correct view of the law. Another thing that is worthy of consideration in this connection, — the lien law, at sec. 14 (Sess. Laws 1899, p. 150), contains a specific provision to the effect that nothing contained in the lien law shall impair the right of any person entitled to a lien to maintain a personal action to recover the debt against an individual or company liable therefor. On the contrary, the lien statute authorizes the allowance of attorney’s fees for foreclosure of the lien, together with expenses of preferring the lien claim. In an action for a personal or money judgment no such costs could be recovered, and no judgment could be had for any such costs and expenses. Again, it has been held that in the foreclosure of liens under these statutes the parties are not, as a matter of right, entitled to a jury trial. (Idaho & Ore. L. I. Co. v. Bradbury, 132 U. S. 509, 10 Sup. Ct. 177, 33 L.
The only remaining question for us to determine is whether or not such a bond comes within the provision of the last sentence in that section which provides that “When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking must also provide for the payment of such deficiency.” If the foregoing provision applies to a stay bond on appeal from an order of foreclosure of a mechanic’s lien, then the trial judge erred in not fixing the amount of the bond to include any deficiency judgment the plaintiff might have. The lien statute at sec. 11 (Sess. Laws 1899, p. 149) provides a method for the collection of any balance that may be due a lien claimant after the sale of the property and the security has been exhausted. That section of the statute closes with this language: “And each claimant shall be entitled to execution for any balance due him after such distribution; such execution to be issued by the clerk of the court upon demand, at the return of the sheriff or other officer making the sale, showing such balance due.” This statute was written evidently on the theory that in the foreclosure of a lien the court must necessarily ascertain and determine the amount due and enter his decree accordingly, and that upon the sheriff or other officer making return of the amount realized from the sale and the balance due under the execution and order of sale, all that will be necessary for the collection of the balance will be for the clerk to issue an execution for that sum. The result, however, is that the plaintiff is entitled to collect any balance remaining due after sale of the property, and