37 Colo. 265 | Colo. | 1906
delivered the opinion of the court:
The action is brought to foreclose a mechanic’s lien upon two lots, and buildings and improvements thereon, in the town of Manitou. The lot numbered 17 is owned by Edith H. Perkins; ten feet of the adjoining lot 16 is owned jointly by Edith H. Perkins' and Charles J. Perkins, her husband. Mrs. Perkins, through her husband, as agent, entered into a contract with the firm of Richardson & Stover for the building of a stone foundation for a residence and for the construction of a stone wall to retain an embankment on the lots. The contractors abandoned their contract, and the owners were required to employ others to complete the work. Within thirty days after the abandonment of the contract, Boyd, a material man, for himself and others who had performed labor, filed his lien statement claiming a lien upon lot 17. The cause was referred to a referee, and the court rendered1 judgment in favor of the lien claimant. From this judgment the cause was taken to the court of appeals for review, where the judgment was reversed and the cause remanded. The district court again rendered judgment against the owner of the lot, who appealed the cause to the court of appeals. Stipulations were entered into by the parties with reference to the testimony given at the first trial, and as the report of the referee is made a part of the bill of exceptions, we shall regard it as having been approved by the court and made the basis, with testimony taken at the last trial, of the court’s judgment. The report found that at the time of the service of notice upon the owner there was in her hands, then due and owing and unpaid to the contractors for stone work, labor and material, $235.15. The court rendered judgment in favor of
It appears that the material was used partly upon lot 17 and partly upon lot 16. The foundation for the dwelling was wholly upon lot 17; the retaining wall extended over the line of lot 17 ten feet into lot 16. The parties stipulated that “The east side retaining wall is wholly situated on lot 16, and that ten feet of the easterly end of the main retaining
The plaintiff, had he included lot 16 in the lien statement, would have been entitled to a lien upon both lots for all the material furnished and labor performed; and under the facts disclosed here, the case involving no other interest than that of the owner of lot 17 and the material men and laborers who built the improvements upon the property used by the defendant for a dwelling house, the plaintiff should have his entire debt paid out of lot 17, although it appears that a portion of the indebtedness was incurred for the improvement of the east ten feet of lot 16. '
The district court is directed to modify its decree as herein indicated. Neither party shall recover from the other costs incurred in this court.
Modified and remanded.
Chief Justice G-abbert and Mr. Justice Campbell concur. _