118 P. 289 | Idaho | 1911
Lead Opinion
This action was brought to foreclose a materialman’s lien on a building and two town lots in the city of Gooding. The defendant Mead and the Gooding State Bank, defendant, failed to answer. The defendant Fales and
The motion to dismiss is made on two grounds í First, that the notice of appeal was not served on the defendants Mead and the Gooding Townsite Company as required by sec. 4808, Rev. Codes, they being adverse parties and would be affected by a reversal or modification of the judgment. The judgment entered was in favor of the defendant, the Gooding Townsite Company, for $500, with interest thereon, and against. Mead and Fales for the sum of $719.82, together with interest thereon and an attorney’s fee of $100. It is clear to me that if the judgment is reversed, Mead and the Gooding Townsite Company, who were not served with a notice of appeal, might be very materially affected, and that they are clearly adverse parties within the provisions of said see. 4808. This court held in Titiman v. Alamance Min. Co., 9 Ida. 240, 74 Pac. 529, that notice of appeal must be served on each party whose interest would be affected by a modification or reversal of the judgment appealed from, whether such party be plaintiff, defendant or intervenor, or whether he appears or is in default. In Lewiston National Bank v. Tefft, 6 Ida. 104, 74 Pac. 529, this court held that where one of two parties appeals from a joint judgment of foreclosure rendered against both, the other defendant is an adverse party to the appeal and as such is entitled to notice. (See, also, Lydon v. Goddard, 5 Ida. 607, 51 Pac. 459, and the Diamond State Bank v. Van Meter, 18 Ida. 243, 108 Pac. 1042, 32 L. R. A., N. S.,
The other ground of the motion to dismiss the appeal was based on the insufficiency of the undertaking. A second undertaking was filed, which we think was sufficient, and the motion to dismiss on that ground must be' denied.
The overruling of the demurrer to the complaint is assigned as error. Upon an examination of the complaint we are satisfied that it states a cause of action, and that the court did not err in overruling the demurrer thereto.
It is next contended that the notice of lien is not sufficient. Upon a careful inspection of the notice of lien, we find that it is in substantial compliance with the provisions of see. 5115, Rev. Codes, in regard to what a claim of lien must contain, and is sufficient.
It is also contended that the contract on which the mechanic’s lien is based was completed on June 5, 1909, and that the court erred in finding that said contract was completed on June 8th. There is a conflict in the evidence upon that question, and this court will not disturb that finding for that reason.
Appellant contends that as the owner had paid the full contract price for the construction of said building before the lien was filed, thát that was a complete defense to this action. His theory is that if the owner pays the contract price for the construction of the building and pays in full before any lien is filed, even though a claim of lien is filed within the time provided by the statute, no lien is created thereby. He concedes that the trial court has followed the Pennsylvania system or rule, which he contends under the statute of Idaho is not the law here. One of two systems seems substantially to have been adopted by the several states — one known as the New York system and the other as the Pennsylvania system. (Bloom on Mechanics’ Liens and Building Contracts, sec. 14 et seq.; Boisot on Mechanics’ Liens, sec. 225; Rockel on Me
It was held in Hunter v. Truckee Lodge, 14 Nev. 24, under the laws of that state, that the legislature intended to give subcontractors and materialmen direct lien upon the premises for the value of their labor and materials, regardless of the payments on the principal contract made prior to the time within which the law requires notice of their claims to be recorded, and we are satisfied that under the mechanics’ lien law of this state, subcontractors and materialmen have a lien upon the premises for the value of their labor and materials, regardless of any payments made to the original contractor prior to the time within which the law requires the notice of their lien to be filed.
It is next contended that this is merely an action in rem, and that the court erred in rendering a personal judgment
It is contended by counsel that the court failed to find and decree the .amount of ground sufficient, if any, for the convenient use and occupancy of the building referred to. We think from the findings and decree taken together it is clear that the court concluded that the two town lots described in the complaint, and upon one or both of which lots said building was situated, were necessary and sufficient for the convenient use and occupancy of the building, and directed them both to be sold by said decree. We therefore hold that said contention is without merit.
While we have not in this opinion referred to all of the questions raised by appellant, we have considered them and find no reversible error in the record. The judgment must therefore be modified as above indicated, and as so modified is affirmed, with costs in favor of respondent.
Concurrence in Part
Concurring in Part and Dissenting in Part. In this case the findings and decree are almost identical with the findings and decree in the case of Robertson v. Moore, 10 Ida. 115, 77 Pac. 218, and in that case this court held that it was the duty of the trial court, under sec. 5113, Rev. Codes, to ascertain the amount of land “required for the convenient use and occupation” of the building or structure and to enter a decree for the sale of that amount of land. This court accordingly reversed the judgment in that case and remanded it, with direction to the trial court to ascertain the amount of land necessary for the convenient use of the structure and to enter a decree accordingly. The findings and decree in this ease are almost identical with the decree in Robertson v.