14 Colo. App. 236 | Colo. Ct. App. | 1900
It would be worse than folly to discuss a multitude of immaterial errors and objections to this appeal which are urged by the appellees, or to consider any other question suggested by the appellant than the one which goes to the fundamentals of the action. The question involved has been recently decided by the supreme court. We shall only state so much of the facts as are necessary to bring the case within that decision, and then disposing of one question for the purpose of settling the practice, we shall dismiss the matter from further consideration.
Mansfield, Eaton and Lipp brought suit against Schweizer, Baty, Tuttle, Galloway and the Teutonic Gold Mining & Milling Company to foreclose a lien which they claimed to have secured on the property. According to the allegations of their complaint the lode mining claim was owned by Miss Schweizer. She leased the property to Galloway who thereafter in conjunction with Baty and Tuttle, employed the plaintiffs to work on the claim as miners. The plaintiffs further alleged the rendition of service, its value, and then set up the filing of a mechanic’s lien on the prope^ to secure the payment of the wages which the employers left unpaid,
This simple statement disposes of the case. We are wholly unconcerned with the rights or remedies of any of the defendants except the appellant Schweizer who was the owner.
The complaint stated no cause of action against her, nor were the plaintiffs, on the proof, entitled either to a personal judgment against Miss Schweizer or to a decree foreclosing the lien. Wilkins et al. v. Abell et al., 26 Colo. 462. Since this is true, and there is an assignment of error which challenges the regularity of the judgment, the appellant has a right to be heard regardless of errors in the prosecution of her proceedings to set aside the judgment. The pleading and the proof are wholly insufficient to support the judgment or to entitle the plaintiffs to the lien. It necessarily follows, whatever irregularities may have been otherwise committed, the judgment cannot stand.
There is another somewhat unimportant matter to which we desire to call attention because it exhibits such a gross abuse of power on the part of the clerk that it ought to be rebuked, that the practice may not again occur. It appears that Miss Schweizer had deposited with the clerk money for the payment of the costs which should accrue against her. By some misadventure her counsel failed to appear when the case was set for trial and the proceeding was as upon a
The complaint stated no cause of action against Miss Schweizer nor any facts to support a mechanic’s lien, and the decree giving a personal judgment against her and foreclosing the lien on her property was'not only irregular but void, and it will therefore be reversed and set aside, and the case sent back for further proceedings in conformity with this opinion.
Reversed.