Hand Manufacturing Co. v. Marks

Decided 14 March, 1898. On Motion to Dismiss Appeal. f 52 Pao. 512.] Per Curiam. This is a motion to dismiss an appeal. The transcript shows that plaintiff, a private corporation, commenced this suit to foreclose a lien upon lots 5 and 6, in block 92, in the City of East Portland, for material furnished to the defendant J. S. Marks, who, by virtue of a contract with one L. D. Brown, now deceased, had charge of the construction of a brick building for the latter on said premises, then owned by him. The defendants Theodore Jensen, James Lyons, and the East Portland Mill & Fixture Company, filed separate answers, in the nature of cross bills, seeking to foreclose their respective liens upon said premises for material furnished to be used in the construction of said building, and the defendant E. P. Brown, executrix of the last will and testament of L. D. Brown, deceased, and the present owner of said premises, filed an answer to the complaint [525] and to the cross bills of her co-defendants. Marks was made a party and demurred to the complaint, but, his demurrer being overruled, he failed to plead further, and the cause being tried, resulted in a decree foreclosing the liens of plaintiff and the East Portland Mill & Fixture Company for the amount demanded by each respectively; but, the court having found that Jensen and Lyons were sureties on Marks’ undertaking for the faithful performance of his contract, a breach of which necessitated an outlay of money by the owner in completing the building, after Marks had abandoned his agreement, in excess of the amounts demanded by said sureties as lien claimants, their cross bills were dismissed, and they jointly, and E. P. Brown separately, appeal, but did not serve the notices thereof upon Marks. 1. It is contended that Marks is an adverse party, and not having been served with a notice of the appeal this courtis without jurisdiction, and therefore the appeal should be dismissed. In Cooper Mfg. Co. v. Delahunt, 36 Or. 402 (51 Pac. 649), we had occasion to examine this question and reached the conclusion that while the contractor having charge of the construction of any building is made by statute the agent of the owner, for the purpose of binding the latter for the value of the material used in or labor performed upon such building at the request of the former, he is not a necessary party to a suit to foreclose a mechanic’s lien, unless a personal decree is sought against him by the owner, and, no such relief being demanded in the case at bar, it follows that the motion must be denied. Motion Overruled. [526] Decided. 15 August, 18D8. On Motion to Advance Case on Calendar. [53 Pac. 1072. [ Submitted without argument. Mr. Justice Wolverton delivered the opinion. 2. This is a motion to advance the above cause upon the calendar for hearing, based upon Section 3677, Hill’s Ann. Laws, which provides, among other things, as follows : “Suits to enforce the liens created by this act shall be brought in the circuit courts, and the pleadings, process, practice, and other proceedings shall be the same as in other cases. * * * All suits to enforce any lien created by this act shall have preference upon the calendar of the court over every civil suit so brought, except suits to which the state shall be a party, and shall be tried by such court without unnecessary delay.” By a fair intendment, the language of the act states simply a rule of procedure to be observed by the circuit courts, in which it is provided such cases shall be instituted. The injunction that they shall be tried by such court without unnecessary delay is an unmistakable indication that the trial, and not the appellate, court was intended. 3. The plain purpose of the act is to promote an early trial in the interest of a deserving class of persons, many of whom are dependent (as we have said in Falconio v. Larsen, 31 Or. 137, 37 L. R. A. 255, 48 Pac. 703) upon their recent earnings for the sustenance of themselves and those dependent upon them, and to make the wages of labor speedily available. This purpose is in most instances subserved when the trial court has given the parties a hearing ; and hence it is evident that the legislature deemed it sufficient for all practicable purposes that the court of original jurisdiction be required to give prece [527] dence to cases coming within the purview of the act. At any rate, the language employed indicates such to be the intendment, and we cannot invade the legislative domain to give it broader scope. The motion will be denied. Motion Overruled. For Lyons and Jensen there was a brief over the names of Fred Larkin Keenan and Guy G. Willis, with an oral argument by Mr. Keenan. For E. B. Brown and E: B. Brown, executrix, there was a brief and an oral argument by Mr. Thomas N. Strong.