Garner v. Van Patten

Per Curiam. This action was brought to recover an amount claimed to be due plaintiff, for work and labor [346] performed in the development and operation of two mining claims and a smelter run in connection therewith, located in Morgan county, and to foreclose a mechanic’s lien on said mines and smelter. The complaint alleges a lien on defendant’s mines and smelter for services of the plaintiff thereon, and a lien obtained by one Jones, thereon, for like services, which lien claim has been assigned to plaintiff. No demurrer was interposed to the complaint, but an answer was filed thereto, denying the allegations therein, but admitting the description of the mines to be as set out in the complaint. The case was tried before a referee. Plaintiff offered the respective notices for liens in evidence. The defendant objected to their introduction on the ground that the notices were not such as were required by law; that the notices did not apportion the amount claimed against the respective mines as required by Sec. 1387, Rev. Stat. 1898, and were at variance with the allegations in the complaint, and were irrelevant, immaterial, incompetent, and insufficient. The objection was overruled and the notices read in evidence. Each notice contained a statement of plaintiff’s demand, the name of the owner, the name of the defendant, who employed him, and a statement of the terms, time given, and conditions of the contract, the time when the first and last labor was performed, and a description of the property to be charged with the lien. In plaintiff’s notice a lien is claimed for labor performed from November 12, to Dec. 29, 1897, in working, developing and preserving the mines commonly known as the Cottonwood Friend and the Silver Zone, describing them. The Cottonwood Friend mine, and appurtenances is charged with a lien of $212.50, and the Silver Zone mine [347] and appurtenances is charged with a lien of $312.50, and both said mines, smelter and appurtenances are charged with a lien of $212.50, after deducting all set-offs, credits and payments made, for services rendered. Defendant VanPatten was charged as the owner, or reputed owner of the property, and that the labor, for which the lien is claimed, was performed at his request, for which he agreed to pay $298.50, $81.50 of which sum had been paid, and that after allowing all just credits of defendants, there remained due plaintiff from defendant VanPatten, the just and full sum of $212.50. It appears from the notice that the sum of $212.50,. was claimed against each mine, and that the full sum due amounted to $212.50. A designation of the amount claimed on each mine is stated. The statements in the lien when taken together are not as accurate, explicit and definite as they should have been, yet, when we consider that the claim was for labor performed by the day on the several mining properties, it may have been exceedingly difficult to segregate the amount of labor performed upon each piece of property with more particularity. It is not fatal to the notice that the claimant claimed a lien upon each mine for more than was actually due. Such a condition if allowed, might defeat the object of the statute. Properly, the notice in such a case, should state the amount of lien claimed upon each piece of property upon which labor was performed, so far as the claimant is able to state it. In such cases the statute should be followed. Whether the amount claimed in the lien is the just sum due must be left for the determination of the court when proceedings are taken to enforce the lien. The lien of Jones which was assigned to the plaintiff was of a similar character. [348] Under the circumstances, we are of the opinion that no reversible error was committed in admitting the notices in evidence. Many other objections are made to the legality of procedure, but the objections are not properly brought before this court, by demurrer, exception, or otherwise. That the description of the property was correct was admitted by the answer. The question of the ownership of the mines, was a question to be determined by the evidence, which is not before us. The court found that the defendant Van Patten was the manager of said mines and smelter, and was publicly and notoriously engaged in working, developing, constructing and operating them. The findings of the referee, which seem to have been adopted by the court, erroneously included a claim or lien of George Rawlins for services and $12.00 for expenses of filing his lien. An examination of the record shows that this claim was not embraced in the complaint, and was not included in the total sum for which judgment was rendered, except the sum of $12.00 for recording lien. No objection or exception is found in the record as to the allowance of this claim of $12.00. Respondent admits the allowance of this charge of $12.00 is erroneous, and that it was allowed through inadvertance and mistake. Therefore, this item of $12.00, should be deducted from the judgment and lien as allowed. We find no reversible error in the record. The cause is remanded to the district court with directions to modify the judgment and decree therein by deducting the sum of $12.00, above referred to. With such modification the judgment and decree, as ordered modified, is affirmed. Each party is required to pay one-half of the costs of this appeal.