Rauer v. Silva
Before: Haynes
Synopsis
Laborers’ Liens—Judgments — Order for Payment—Appeal—Question of Costs.—Upon appeal from an order for the payment of judgments and costs in favor of laborers, each of whom had served upon the plaintiff in an attachment suit his affidavit to establish a laborer’s lien upon the money attached, and had within ten days thereafter sued the debtor and recovered the judgments, the only question which can arise in favor of the appellant, by reason of the recovery of such judgments, is one merely of costs.
Id.—Dispute of Claims—Necessity of Suits—Incomplete Showing in Record—Presumption upon Appeal.—Where the record upon such appeal merely shows that neither the plaintiff nor the sheriff disputed the claims, but does not show that the debtor did not dispute them, as he might have done, under section 1200 of the Code of Civil Procedure, it cannot be presumed upon the appeal that the suits were unnecessary; and the order appealed from will not be disturbed. If the suits were in fact unnecessary, the appellant must show it by the record.
Id.—Service of Notice of Claims upon Plaintiff—Conflicting Affidavits—Support of Ruling.—Where the court ruled upon conflicting affidavits that the notice of the claims of the laborers was served upon the plaintiff, by deposit thereof with the clerk in charge of his office, its determination of that fact will be upheld, and it cannot be contended upon appeal that the plaintiff had no opportunity to dispute their claims.
Id.—Order in Attachment Suit—Motion of Debtor to Pay Judgments. The order to pay the judgments in favor of the laborers should properly be made in the attachment suit for the protection of the sheriff; and it might properly be made upon the motion of the debtor, who was the defendant therein.
[43]
HAYNES, C.
Plaintiff brought an action in the superior court to recover from defendant 'Silva the sum of three hundred and Seventy-three dollars upon an account, and a writ of attachment was issued therein, and thereafter judgment by default was rendered against Silva. The other defendants were fictitious persons. John O’Connor and. Halcón Johnson each in due time served upon the plaintiff and the sheriff his affidavit to establish a laborer’s lien upon the money attached, pursuant to the provisions of section 1206 of the Code of Civil Procedure, and within ten days thereafter commenced their several actions against Silva in justice’s court, and afterward had judgment therein, O’Connor for seventy-five dollars and fifty cents, and Johnson for forty-five dollars and fifty cents, for labor performed by them for Silva within sixty days next preceding the levy of the attachment.
Afterward, defendant Silva served upon plaintiff notice of a motion for an order of the superior court directing the sheriff to pay out of the funds in his hands the amount of said justice’s judgments to O’Connor and Johnson, respectively, and upon the hearing of said motion it was granted, and from the order granting it this appeal is taken by the plaintiff.
The bill of exceptions recites that O’Connor and Johnson severally served notice by affidavit upon the sheriff and plaintiff Rauer of their several claims for labor against Silva, as required by section 1206 of the Code of Civil Procedure, that the plaintiff did not deny or dispute, by affidavit or otherwise, the facts stated in the affidavits of O’Connor or Johnson, but that O’Connor and Johnson each commenced an action in justice’s court against Silva alone for the amount claimed by each for' labor performed by each respectively within sixty days next preceding the levy of said attachment.
It is contended by appellant that there was no necessity for these claimants to commence suit, unless the plaintiff “and the sheriff” disputed their claims. It is shown that the plaintiff did not deny or dispute them, but it does not appear but that the debtor did, and, if so, it became necessary for these claimants to bring suit within ten days, or be barred of their said claim. The statute does not require the sheriff to make any response to the claim, notice of which is served upon him for
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