173 P. 555 | Nev. | 1918
A writ of certiorari issued out of this court upon the application of George W. Abel to review the proceedings had in the Third judicial district court of the State of Nevada in and for the county of Lander in three separate actions commenced in the justice’s court of Argenta township, in said county, and appealed to the district court by the relator upon questions of law and fact.
The lien, as an appropriation of a specific thing, has been superadded to the remedy afforded by an ordinary action for the debt, but has not interfered with its enforcement. (Phillips, Mechanics’ Liens, 3d ed. sec. 311.)
It is provided by the act giving mechanics and others a lien that nothing in it is to be construed to impair or affect the right of any person to whom any debt shall be due for labor, to maintain a personal action to recover such debt against the person liable therefor. (Rev. Laws, 2226.) This act also provides that all liens are assignable as any other chose in action. (Rev. Laws, 2229.) It is to be borne in mind that the plaintiff was the holder and owner of the liens by assignments that carried the debt and were the only liens lodged against the property. No provision in the act purports to restrict the right to recover the debt and resort to the enforcement of the lien in the same action.
" The rule is general, in the absence of some provision to the contrary, that the remedy upon a * * * lien and the remedy upon the debt are distinct and concurrent, and may be pursued at the same time or in succession. (Hatcher v. H. & B. Mfg. Supply Co., 133 Fed. 271, 68 C. C. A. 19.)
Our practice act permits the union or combination of legal and equitable remedies in the same action.
The question as to the lien claimant’s right to a personal
Under the views here expressed the district court had jurisdiction on appeal to render a personal judgment in each of the cases mentioned, together with a judgment for costs and attorneys’ fees for services rendered in obtaining such personal judgment, but that it had no jurisdiction to include in its judgment, as a part of the costs, the amount paid for recording the mechanic’s lien statements or costs or attorneys’ fees incident to the foreclosure of said liens in either the justice’s court or the district court. If an order be entered at the next session of the respondent district court modifying the judgments mentioned in accordance with the views expressed herein, the order will be that these proceedings be dismissed; otherwise the writ will be made peremptory.