185 F. 752 | 9th Cir. | 1911
(after stating the facts as above).
The appellants' contend that the appellees’ notices of liens do not show or establish liens under the lien law of Alaska, and that the complaint does not state facts sufficient to constitute a cause of suit as against them. Section 262 of the lien law (Carter’s Civil Code) in plain terms gives a lien on a mine to any person who performs work in its development at the instance of the owner or his agent, and it makes the person in charge of the mine the owner’s agent, and section 265 declares that, if such work is in fact done for another than the owner, the owner may avoid liability therefor by giving notice that he will not be responsible for the same.
The important question in this case is whether the complaint and the lien notices show that the work of the appellees was of the character of work for which those sections grant a lien. The statute, although it is said to have been taken from the law of California of 1868, omits the specific provision of the California statute which gave a lien for th,e ordinary work of a miner in a mine, and it differs
Two other questions are involved in’the assignments of error which as they may arise on a new trial will be briefly noticed. It was not error to admit in evidence the answer of the appellants. The foreclosure proceeding is an equity suit, and the answer is evidence as in ordinary cases in chancery. 27 Cyc. 414; Tracy v. Rogers, 69 Ill. 662. Nor was there error in allowing attorney’s fees to the appellees. Cascaden v. Wimbish, 161 F. 241, 88 C.C.A. 277; Iowa Life Ins. Co. v. Lewis, 187 U.S. 335, 23 S.Ct. 126, 47 L.Ed. 204; Fidelity Life Asso. Co. v. Mettler, 185 U.S. 308, 22 S.Ct. 662, 46 L.Ed. 922.
It is suggested that the lack of evidence to sustain the decree cannot be considered by this court for the reason that the bill of exceptions was not certified by the trial judge at
The court found further ground for declining to consider the bill of exceptions in the fact that the exceptions were not filed with the clerk until more than six months after the entry of the decree, and that a prior order extending the time to settle the same had been made long after the time for filing the exceptions had expired, and at a time when the court had no authority to extend the time. In the present case the bill of exceptions was not signed by the judge, but an order settling and certifying the “foregoing bill of exceptions” was made in open court and signed by the judge, and that order and the bill of exceptions were filed with the clerk at the same time, and were indorsed, “Bill of Exceptions, Order Settling Bill of Exceptions.” Those two papers, filed as they were at the same time, should be considered as one, and in our opinion they contain a sufficient certification of the exceptions to comply with the statute.
The decree will be reversed and the cause remanded to the court below for a new trial, with leave to the appellees to amend their complaints if they so elect.