McClung v. Paradise Gold Mining Co.

THE COURT.

This case was decided by the district court of the third appellate district. That court sustained the judgment upon plaintiff’s individual claim and that against defendant Lyall, who does not appeal, but reversed the judgment as to those claims assigned to plaintiff. Since we agree with the district court of appeal except as to the last conclusion, we adopt so much of the opinion of that court, written by Mr. Presiding Justice Chipman, as is applicable:

“The action is for the enforcement of laborer’s liens against the property of defendant mining company and for

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judgment against defendant Lyall. Plaintiff brings the action in his own behalf and as assignee of the claims of eight other persons. The court made findings in favor of plaintiff and entered judgment against defendant Lyall for the sum of $839.66, with interest from June 25, 1909, and for costs, and adjudged that plaintiff ‘have a lien upon the real property hereinafter described for the payment of the sum of six hundred and eighty dollars, together with interest thereon since June 25, 1909, at the rate of 7 per cent', with costs, amounting in all, exclusive of costs, to $695.50. The usual decree for a sale of the property was made.

“Within sixty days from the entry of judgment, defendant, Paradise Gold Mining Company, appealed from the judgment on bill of exceptions. Defendant Lyall does not appeal. . . .

“The individual claim óf plaintiff is ... to be noticed. His claim states: ‘I performed 31% days labor upon said real property commencing the same May 3d, 1909, and ending June 8th, 1909, under an agreement with Dr. Robert Lyall to pay the sum of $2.50 per day, or the sum of $78.25 in all for said labor and there is justly due me on account thereof, the sum of $78.25, after deducting all just credits and offsets. ’ The claim then states that defendant corporation is and was at the time the owner and reputed owner of said real property ; that defendant Lyall was the person by whom plaintiff was employed ‘and said labor was performed as tending giant’; that said Lyall ‘is and was, at all times herein mentioned, the person who caused said work to be done who claimed an interest therein, and was and is the agent of the said owner. There was no statement in the claim, in terms, that the labor performed was in the development of any mining claim or work thereon by the subtractive process and it is hence argued that no legitimate inference can be drawn from the facts that plaintiff is entitled to a lien. It was not necessary that the claim should use the language of the statute. The averment was sufficient to warrant proof of just what the labor was and from such proof it was to be determined whether the labor was in development work or mining by the subtractive process. Section 1183 of the Code of Civil Procedure, prescribes the class of persons entitled to the lien and the purpose for which the labor is to be performed in