Page images

Local and Special Laws.

Discretion of county officers. See Constitutional Law," 7-10.

6. Section 8 of the county government de (Laws 1891, p 296,) authorizing the distrie attorney of any county, and making it bis dry

, Location.

to institute suit for money paid out by the Of mining claim, see "Mines and Mining," 1-4. vests the attorney with a discretion in determi

board of supervisors without authority of lot,

ing whether to bring suit which a court om Magistrate.

not control by mandamus. - Boyne T. Brow,

(Cal.) 34 P. 707. See "Justices of the Peaces."

Who may petition for writ.

7. The petitioners nominating a candidata Maintenance.

for a public office have such special and pedir

interest in having his name appear on the di Of wife, see "Husband and Wife," 11, 12. cial ballots as is necessary to entitle then a

maintain an action to require the exteny Malice.

state to certify the fact of his dominating to

the various county clerks in the district-> Definition, see "Criminal Law," 52.

son v. Osborn, (Kan.) 34 P. 747.


Marriage. Malicious attachment.

See "Divorce;" "Homestead;" "Husband est

Wife." 1. There can be no recovery for the malicious suing out of a writ of attachment against real estate without probable cause, MASTER AND SERVANT. when it does not appear that it was fully executed, as required by Code Civil Proc. § 542, See, also, “Negligence;" "Principal and Azer." and that a copy of the writ, description of the "Railroad Companies." property, and notice were left with the occupant of the property, or posted thereon, as well / Wages. as filed with the recorder of the county.-Maskell v. Barker, (Cal.) 34 P. 340.

1. The fact that plaintiff entered defeat

ant's service at a certain rate per monta, es Probable cause.

labored continuously thereafter till the edo 2. The voluntary dismissal of an action is the time for which he asks wages, while i not an admission of want of probable cause. | tinued throughout, may be overcome bire

raises a presumption that the rate of stages of Asevado v. Orr, (Cal.) 34 P. 777.

dence that the old contract was endal, sada

new one begun, with no particular wages sont MANDAMUS.

fied; and such evidence, if contradicted

, is the

the jury alone. -Burden v. Cropp, (Wash.) : Compelling reapportionment of assessment, ef. P. 834.

fect of laches, see "Municipal Corporations," Negligence of master. 45.

2. Plaintiff, a saw operator in defenderit Refusal of writ where remedy would be factory, while cleaning snow from logs prepara ineffective.

tory to sawing them, was ordered by defandast

"not to take so much time in cleaning the word 1. Mandamus will not lie to compel the but to go over it quickly," and, while gari district attorney to institute a suit to recover a log from which he had not cleaned the 205 money unlawfully paid out by the board of su- his finger was cut by contact with the sur pervisors, as the court could not compel him to Held, that such order did not establish on prosecute it, and it will not undertake by man

gence on defendant's part.-Wanner r, Kista damus what cannot be accomplished.-Boyne v. (Colo. App.) 34 P. 1014. Ryan, (Cal.) 34 P. 707. 2. A writ of mandamus to compel the sec- sorting and carting away ore on a roadmap

3. Plaintiff was employed by defendent is retary of state to affix the state seal to and constructed across the face of a body of one countersign a commission issued by the govern- with a precipice 75 feet below it, and a bat or to one appointed by him to office will not be running 30 feet above it. A shot having been denied because the commission would confer fired to dislodge ore above the road way, geod on the person appointed no actual right and er workman, experienced in such €8761 therefore the writ would require the secretary ment, by direction of defendant's foremet, to do a useless thing. --State v. Barber, (Wyo.) amined the bank above the roadway by letis 34 P. 1028.

hinuself duwn from the top, and fell for Compelling court to entertain appeal. loose ore with a pick. After this examinades 3. Mandamus is the proper remedy to re that the roadway was safe, and to set to rest

was made, plaintiff was told by the forma instate an appeal properly taken to the district again. Shortly after the bank above the mounts court, and which it has refused to entertain for supposed want of jurisdiction.-State v. Dis way fell down, and knocked plaintiff over the trict Court of First Judicial District, (Mont.) precipice below. Eeld, that there was no ei 34 P. 298.

dence of negligence on defendant's part--Bus by mandamus to recognize an attempted appeal ing, "" because of the liability of the stick to 4. The superior court will not be required nett v. Tintic Iron Co.

, (Utah.) 34 P. 61 from an order which is not appealable.-State break in the hands of the person holding it v. Parker, (Wash.) 34 P. 149.

so obvious that a master may assume that To municipal boards and officers. servant ordered to undertake it will s42

5. The fixing of water rates requires the comprehend the hazard, and he is not been exercise of discretion and judgment, and, where for failure to give warning.- Watts P. Hert the board authorized by law to fix such rates (Wash.) 34 P. 423, 771. has exercised its discretion by passing an order Dangerous premises. for that purpose, it cannot be compelled by 5. A cable railway company, in construo mandamus to change its judgment, or to take ing its power house so that the doorway throng further action on the order.-Jacobs v. Board which cars are taken out is only a few inches Supr's City and County of San Francisco, (Cal.) / wider than the cars, and the track on whid 34 P. 630.

they are run out is on a slight up grade, and it

open bei ween the tracks, so that employes, in Morgan v. Carbon Hill Coal Co., (Wash.) 34
pushing a car out, have to push on the side, and P. 152, 772.
push rapidly until they reach the doorway, and 13. A section hand on a hand car going to
then let go and catch it again after it bas pass. his place of work to aid in repairing the rail-
ed through the doorway, is not guilty of negli- way, and the conductor and engineer of a
gence which will render it liable to an employe working train also engaged in repairing the
who, by failing to let go in time, is caught be railway, are fellow servants, and the company
tween the side of the doorway and a car, as is not liable for injuries to the section man
there is no hidden danger. - Jennings v. Tacoma caused by the negligence of the conductor and
Railway & Motor Co., (Wash.) 34 P. 937. engineer.-Atchison, T. & S. F. R. Co. v. Mar-

6. A railroad company which sets a laborer tin, (N. M.) 34 P. 536; Martin v. Atchison, T.
to work near an overhanging embankment, with & S. F. R. Co., Id.
knowledge on the part of its foreman that there 14. The engineer and fireman of a locomo-
is a crack in the embankment, conspicuous from tive and a common laborer, all of whom are en-
the rear, but not visible from the front, is lia-gaged in moving cars from a spur track, are
ble to the laborer for injuries sustained from fellow servants, and the latter cannot recover
the falling of the embankment, since it failed from the master for the former's negligence.-
to provide him with a safe place in which to Watts v. Hart, (Wash.) 34 P. 423, 771.
work.-Elledge v. National City & O. Ry. Co., 15. A section man and the foreman of the
(Cal.) 34 P. 720; Id. 852.

gang are fellow servants, although the foreman
1. The fact that the embankment may has charge of the men, hires and discharges
have been secure when the excavation com- them, and directs their work, if he also works
menced, and that it became unsafe by the pro- as the other men, and has nothing to do with
cess of excavation, does not affect the com- paying them. O'Brien, C. J.. dissenting.-At-
pany's liability to plaintiff, who entered its em-chison, T. & S. F. R. Co. v. Martin, (N. M.) 34
ploy a few hours before he was injured, since, P. 536; Martin v. Atchison, T. & S. F. R. Co.,
so far as he is concerned, the place was danger | Id.
ous when he was set to work.-Elledge v. Na 16. A foreman who had no other duty than
tional City & O. Ry. Co., (Cal.) 34 P. 720; Id. to load cars, and is not shown to have had any

authority to direct the men under him to as-
Defective appliances.

sist an engineer in moving cars, could not bind

the master by such an order, so as to make it
8. A master does not warrant absolutely the duty of the men to obey him; and where
the safety of the appliances used in couducting they did obey him they assumed the risk.-
his business, but performs his duty if he fur- Watts v. Hart, (Wash.) 34 P. 423, 771,
nishes his servants with such as are reasonably
safe and adequate.-Watts v. Hart, (Wash.) 34

Negligence of vice principal.
P. 423, 771.

17. In an action for injuries received by

plaintiff while on a hand car from being struck
9. In an action for injuries to an employe, uff and other section men were going, of their

by a work train, the evidence showed that plain-
an allegation that defendant's foreman and Jown volition, earlier than usual to their work;
agents were "negligent and careless" is not that the work train was running on telegraphic
equivalent to alleging that they were "incom- orders; and that the men on the hand car knew
petent."-Kelly v. Cable Co., (Mont.) 34 P. 611. of the company's order that "every man at
Sufficiency of evidence.

work on the track must bear in mind that, in
10. Plaintiff was injured by a fall while operating the road under telegraphic orders, a
employed as a carpenter by defendant, and in train may pass at any moment. Held, that
an action therefor he alleged that the fall re-

the company was not liable because of the neg-
sulted from the incompetency of H., a coserp- ligence of any superior serrant controlling the
ant, and that because of the careless and in-

work train and section men.-Atchison, T. & S.
skillful treatment of the wound by a surgeon

F. R. Co. v. Martin, (N. M.) 34 P. 536; Martin
employed by defendant it was necessary to

V. Atchison, T. & S. F. R. Co., Id.
amputate plaintiff's leg. The evidence failed Negligence of fellow servants.
to show any lack of skill by H., or the neces 18. The fact that an engineer once ran his
sity for his exercise of any particular skill, train in 40 minutes over a distance scheduled
or that defendant had knowledge of any in- for an hour, though he knew that hand cars
competency of H. of which plaintiff was igno- and sectionmen might be on the track up to
rant. Plaintiff's evidence tended to show that | 10 minutes before schedule time, no accident
H. was not working with plaintiff at the time having in fact occurred, does not show that he
of his injury, and that plaintiff had stated was unfit for his position, and that the com-
that he alone was to blame; that the surgeon pany ought to have discharged him after no-
employed was duly qualified, under the laws tice-Holland v. Southern Pac. Ry. Co., (Cal.)
of the state, to practice his profession; and it 34 P. 666.
failed to show any injury to the leg, as a re 19. A bridge carpenter, employed by a rail-
suit of a lack of skill. Held, that a nonsuit road company, who is injured while loading
was properly directed.- Jorgenson v. Butte & timbers from a bridge on a car for transporta-
Montana Commercial Co., (Mont.) 34 P. 37. tion to another point, is entitled to the benefit
Fellow servants and vice principals of Gen. St. 1889, c. 23, § 93, making railroad
Who are.

companies liable for injuries received by an em.
11. Knowledge as to the dangerous character agents, or mismanagement of its engineers, or

ploye in consequence of the negligence of its
of the place in which plaintiff was set to work, other employes.-Chicago, K. & W. R. Co. v.
by the road master of defendant railroad com- Pontius, (Kan.) 34 P. 739.
pany, who was charged with performing what-
ever duty the company owed its employes, is Assumption of risks.
imputable to the company itself, so as to render 20. The doctrine that a servant has a right
it liable for plaintiff's injuries.-Elledge v. Na to assume that his master has furnished him a
tional City & O. Ry. Co., (Cal.) 34 P, 720; Id. safe place in which to work, does not apply

where dangers are apparent.-Jennings v. Ta-
12. One appointed by a mining company, as coma Railway & Motor Co., (Wash.) 34 P. 937.
required by law, to examine its mine daily for 21. Where a master and servant are equal.
fire damp, with' authority to forbid men from ly ignorant of the dangers incident to the work,
working in any part of the mine which may the servant assumes the risk.-Watts v. Hart,
seem unsafe, is not a vice principal of the com- (Wash.) 31 P. 423, 771.
pany, so as to make the latter liable for his 22. Plaintiff was employed as a sack sewer
negligence in opening a lamp to light his pipe in defendant's flour mill, and to do such other
while engaged in conversation in the mine. I work as the foreman might direct. In com-

plying with the latter's directions to assist him | er track repairers along the railroad, it being in taking apart some rollers on one side of the the custom for such employes to ride on man room in which he worked, he was caught in loaded with ties, and is thrown from the re, some belts and rollers, which he could not see while in a standing position, by the train e on account of the darkness of the room, and denly starting without any usual signal, as the which were not protected by any guards or ringing of the bell or the sounding of the white railing. The only lantern in the room, the fore- tle, and where his foreman saw him in te man had at the place of the accident. The evi- position before he directed the conductor to dence on plaintiff's part tended to show that start the train, and the conductor also saw hin he had never been in that part of the room, in the same position before motioning with his and did not know of the location of machinery hand for the engineer to go on, it is a goestige in that place. Held, that a verdict for plaintiff for the jury whether decedent was guilty of would not be disturbed on the ground that he such contributory negligence as to prevent any had assumed such risk, or was guilty of con- recovery for his death, under Civil Code, tributory negligence.Gisson v. Schwabacher, 422.-Union Pac. Ry. Co. v. Geary, (Kan.) 3 (Cal.) 34 P. 104.

P. 887. 23. In an action against a stea mship com 29. There can be no recovery for the death pany for personal injuries sustained by falling of an employe caused by a fire-damp explos 10 through the hatchway of defendant's vessel, resulting from an officer of the company a the court properly refused to charge that ing his lamp, when he was induced to do so by the verdict must be for defendant if plaintiff the statement of deceased, who had been knew, or could by ordinary care have learned, that spot for some hours, that there was no fire that it was defendant's custom to sometimes camp there.-Morgan v. Carbon Hill Coal Co. have the hatchway open and sometimes closed, (Wash.) 34 P. 152, 772. when he would have occasion to descend the 30. Iu an action against a steamship consame in the course of his employment.-Smith pany for personal injuries sustained by falling v. Occidental & Oriental Steamship Co., (Cal.) | through the hatchway of defendant's Fessel inte 34 P. 84.

the hold, it appeared that defendant Deglinen 24. In an action against a steamship com- ly omitted to light the passageway; that plaitis pany for personal injuries sustained by falling and other employes passed down a stairsa through the hatchway of defendant's vessel, to the hatchway; and that one man preedel eridence that plaintiff had previously worked on plaintiff. The latter testified that he could not the vessel, and had opportunity to learn the po- see the hatchway; that he tried to stand there sition of the hatchway, and that it was open but the men pressed him from behind, and be on certain occasions, was not conclusive that he fell in; and that there was room for the me had such knowledge.--Smith v. Occidental & to stand if it had been lighted. His cordant Oriental Steamship Co., (C 34 P. 84. while on the vessel, and the extent of his

25. In an action for injuries to an employe knowledge of the danger by reason of his pre in a mine, alleged to have resulted from negli- vious experience, did not clearly appear. Hic gent blasting, and from failure to make a that the question of plaintiff's contributor Des proper examination to discover loose pieces of ligence was for the jury.-Smith v. Occidental ore after the blast, it is error to ask a witness & Oriental Steamship Co., (Cal.) 34 P. 84 if the blast was prepared and the examination made in the ways usual in that mine, when it

Material Men. does not appear that the injured employe knew what those ways were.-Bennett v. Tintic Iron See “Mechanics' Liens." Co., (Utah.) 34 P. 61. 26. Plaintiff was injured by an explosion in

Meander Line. defendant's mine, while working with a pick where blasting had been done shortly before by See “Boundaries,” 3. fellow miners, and in an action therefor there was evidence, though conflicting, that it was

Measure of Damages. not the duty of the foreman to be present when every blast was made, to see that all the char. See “Damages." ges exploded, but that it was the duty of plaintiff's fellow servants to do the blasting. The

MECHANICS' LIENS. evidence also showed that sometimes a piece of powder was accidentally dropped into the debris Validity of contract for erecting buildby a workman, and that such a piece could be exploded by the blow of a pick. Held proper

ing. to charge the jury that “one of the risks which

1. Failure of the contract for erecting! a servant takes upon himself is the negligence building to comply substantially with Code of his fellow servants in the same common em- Civil Proc. $8 1183, 1184, relating to mechanployment, and in this case the men engaged in ics' liens, does not render the contract Foid. blasting were in law fellow servants with

Lumber Co. v. Wooldredge, 27 P. 431, 90 Cal plaintiff;” and if plaintiff was injured by their 578, followed.-Dunlop v. Kennedy, (Cal.) 34 P. negligence, and deferdant had no reason to be

92. lieve such men were incompetent, or careless,

2. A contract for erecting & building. then the jury should find for defendant, unless it which provides that 25 per cent of the sun was the duty of the foreman to superintend the after completion of the building, and the rest

to be paid shall remain unpaid until 35 dass blasting, and see that all the blasts, had ex mainder be paid in partial payments equal to ploded.-Kelly v. Cable Co., (Mont.) 34 P. 611. 75 per cent. of the value of the work and maContributory negligence.

terial done and furnished at the time of such 27. An employe of a street-car company who Proc. $ 1184, providing that the contract price

payments, sufficiently complies with

Code Civil has to push a car through a doorway, by push- shall, by the terms of the contract, be made ing on the side, and who, instead of letting go payable in installments at specified times after on reaching the doorway, attempts to pass commencement of the work, and on the com; through the space between the side of the door- pletion of the work, provided that at least 25 way and the car, which is only 34 inches, per cent. of the whole contract price shall be where there is nothing to prevent his seeing the made payable at least 35 days after final com danger, is guilty of contributory negligence. - pletion of the contract.-Dunlop F. Kennedy, Jennings y. Tacoma Railway & Motor Co., (Cal.) 34 P. 92. (Wash.) 34 P. 937.

3. A contract for erecting a building, and 28. Where decedent, engaged in repairing a also for improvements on an adjoining lot rua railroad track, climbs on a car loaded with ties, ning "westerly," is not avoided by the fact that which are to be distributed by himself and oth the recorded memorandum of the contract ex

roneously uses the word "easterly," nor is the Rights of material men-Duty of owner
sufficiency of the memorandum destroyed.-Dun.

to protect.
lop v. Kennedy, (Cal.) 34 P. 92.
4. The mechanic's lien statute does not re-

12. Under Code Civil Proc. $ 1184, requir-
quire that the contract for erecting a building ing the contract for erecting a building to spec.
shall be signed by the owner, and it is suffi- ify times when payments are to be made, and
cient if it be signed by the reputed owner.- requiring 25 per cent. of the price to be re-
Dunlop v. Kennedy, (Cal.) 34 P. 92.

tained until 35 days after completion, partial

payments, however they are specified as to
Property subject to.

time, may be safely made, provided no notice
5. Civil Code, $$ 638e, 638f, providing that a of their subcontracts is given by material men,
contractor on public work shall give bond, on in the absence of which they must rely on the
which any person having a claim for work or responsibility of the contractor, and the 25 per
material may sue, do not take from the laborer cent. required to be retained; and in such case
or material man his right to a mechanic's lien they are not injured by any uncertainty as to
upon a public building.--Board Com'rs Jewell the times of payment specified, nor by pay-
County v. Snodgrass & Young Manuf'g Co., ments in advance of the specified time.-Dunlop
(Kan.) 34 P. 741.

v. Kennedy, (Cal.) 34 P. 92.

13. All that material men can require, in

such case, is that at the time they serve writ-
6. A courthouse is not exempt from the ten notice upon the owner, or, if no notice is
operation of the mechanic's lien law.-Board served, at the time their lien is filed, there
Com'rs Jewell County v. Snodgrass & Young shall be in his hands the amount required by
Manuf'g Co., (Kan.) 34 P. 741.

the contract and said section.-Dunlop v. Ken-
Liability of homestead.

nedy, (Cal.) 34 P. 92.
7. A lien for materials furnished is a "me la contractor material for erecting a building

14. It does not prejudice persons furnishing
chanic's lien,” within the meaning of Code that the owner of the land purchased material
Civil Proc. $ 323, providing that such a lien from a firm of which he was a member, and
shall not be affected by the provisions for furnished it to the contractor as a partial pay-
homestead exemptions. De Witt, J., dissent- ment of the contract price, which partial pay-
ing.--Bonner v. Minnier, (Mont.) 34 P. 30. ment he had a right to make.—Dunlop v. Ken-
Improvements by vendee - Failure of nedy, (Cal.) 34 P. 92.
vendor to disclaim responsibility,

15. The owner of a building who, out of
8. One who performs labor in the erection entitled to file liens, and would have filed them

the contract price, has paid laborers who were
of a building on land in possession of his em- but for such payment, and who has also re-
ployer under a contract for its purchase is not tained out of the contract price the 25 per
entitled to a lien, as against the interest of the cent. required by Code Civil Proc. $ 1184, to
legal owner, though the latter has failed to be retained until 35 days after completion of
post a notice that he is not responsible for im- the contract, is entitled to credit for such pay-
provements placed thereon, as provided by Gen. menţ; , and material men are not entitled to
St. § 1671. Lumber Co. v. Bolton, 32 8. 787, have the amount of such payment considerei
5 Wash, 763, followed. — Iliff V. Forssell, as part of the fund available for their claims,
(Wash.) 34 P. 928.

on the ground that there could be no privity
Lien for constructing irrigating ditch, between the owner and such laborers until
9: Rev. St. U. s. 88 2339, 2340. recognize they filed their liens, so as to entitle

him to
the right to go on the public lands, and to con-

pay them.-Dunlop v. Kennedy, (Cal.) 34 P. 92.
struct ditches for mining, agricultural, and Proceedings to perfect.
other purposes; and the right of way so taken
and held is acknowledged, all patents being

16. The purchaser of lands whereon the ven:
subject to such right. Laws 1890, p. 24, § 1, dor has contracted for a building, in process of
gives a lien for work done under contract with construction at the time of the sale, is the own.
the owner of any land, to the extent of his in- er to be notified of the filing of a subcontractor's
terest, and provides that "any person having an

lien.-Rice v. Carmichael, (Colo. App.) 34 P.
assignable, transferable or conveyable interest 1010:
shall be deemed an owner,” and that

17. Comp. Laws, $ 1520, provides that a
the lien shall attach to another or greater in- lien shall attach whether the materials are fur.
terest acquired by the owner after the com- nished or labor done at the instance of the
mencement of the work. Held, that one who owner of the building or his agent, and that
contracts with an irrigation company to con-

every contractor or other person having charge
struct its ditch has a lien on the ditch, the of the construction shall be held to be the
right of way being obtained by the irrigation agent of the owner, for the purposes of this
company as fast as the ditch was constructed.

Section 1524 requires the claimant to file
-Garland v. Bear Lake & River Waterworks for record his claim, which shall state, inter
& Irrigation Co., (Utah) P. 368.

alia, the name of the person by whom he was

employed, or to whom he furnished the mate
Improvements not a part of realty. rial. Section 1529 makes it the duty of the

10. Under Comp. Laws, $S 1520, 1522, owner, within three days after be obtains
which provide that every person furnishing knowledge of the contract, to give notice that
materials to be used in the construction of any he will not be responsible therefor. Held, that
structure has a lien on the same, and that the a notice which gives the name of the person
land on which any structure is constructed is contracted with is sufficient, without showing
also subject to the lien, the improvements need what relation such person sustained to the
not become a part of the realty, to entitle the owners. Lee, J., dissenting.–Post v. Miles, (N.
persons doing the work and furnishing the ma- | M.) 34 P. 586; Stahlin v. Same, Id.; Mountain
terials to a lien on the realty.-Post v. Miles, (N. Electric Co. v. Same, Id.
M.) 34 P. 586; Stahlin v. Same, Id.; Mountain 18. A notice of a lien for materials, stating
Electric Co. v. Same, Id.

that the lienor has, by virtue of a contract
For what obtained.

heretofore made with H. and with K., his con-

tractor, furnished materials and done work in
11. Where in an action to enforce a lien for plastering a certain dwelling house, the ground
material furnished for the construction of a on which said dwelling was erected being the
telephone line there is no evidence that such property of H., who caused its erection and
material was used in the construction of the was its owner or reputed owner, sufficiently
particular linę against which the lien was complies with Hill's Code, 8 3673, providing
sought to be enforced, a judgment for plaintiff that the claim filed shall state the name of the
will be set aside on appeal.- Poebling, Sons Co. person to whom the materials were furnished,
1. Bear Valley Irrigation Co., (Cal.) 34 P. 80. such section also making the contractor the


agent of the owner.-Rowland v. Harmon, (Or.) 27. A person who has so furnished msteris 34 P. 357.

for a reduction mill on a mining claim cansat 19. The fact that a notice of lien states contend that his lien attached when the miii su $150 as the sum to be credited on the account, commenced, and before it was used in coased when a preponderance of the evidence shows tion with the mine, and therefore before it be that it should be $152.50, does not affect the came appurtenant 'to the mine, as the rilis validity of the notice, when the claimant is nei- a part of the mine, and not å mere apparte ther willful nor negligent in failing to give nance. - Williams v. Mountaineer Gold Min. Ce credit for the extra $2.50, and contends for (Cal.) 34 P. 702. the correctness of his statement in good faith. 28. Conceding the mill to be appurtenant to - Rowland v. Harmon, (Or.) 34 P. 357. the mine, such contention cannot be sustained

20. It is essential to the validity of a me for the further reason that one who has to chanic's lien that the notice of lien shall con- nished material for a structure must be bed tain, as required by the statute, a statement of to have anticipated its future use. Williams T. the claim, and the name of the person to whom Mountaineer Gold Min. Co., (Cal.) 34 P. 70% claimant furnished material, or for whom he Priority. performed labor.-Dillon v. Hart, (Or.) 34 P. 817.

29. One who contracts with an irrigation 21. A notice of lien, which states that claim-company to construct its ditch has a lien ou be ant had a contract with A. for furnishing lum- ditch which has priority over a trust deei era ber and material used in erecting a dwelling cuted by the irrigation company before the cos house on ground, describing it, belonging to B., tractor commenced work, under Laws 10 who caused the dwelling house to be erected, 24.-Garland v. Bear Lake & River Wate and that the value of such lumber and material works & Irrigation Co., (Utah,) 34 P. 368. was a specified. sum, is not sufficient to create Validity of contractor's bond-Failure a lien, because it fails to state the name of the

to record building contract. person to whom the materials were furnished, or to connect the person with whom claimant

30. Code Civil Proc. Cal. $ 1183, proriis had the contract with the owner of the ground that a building contract which is not recorde: and building, as required by Hill's Cole, gs before work is commenced thereunder, bers 3669, 3673.32 P. 620 affirmed.-Rankin o the contract price exceeds $1,000, shall be fet, Malarkey, (Or.) 31 P. 816.

and no recovery_thereon can be had by eitb 22. Where materials are furnished to the party thereto. Held, that a bond for $3* head of a firm having a contract for the erec- given by the contractor to the owner to see tion of a building, and in his statement for å the latter against claims and liens for labor 09 lien the material man names only the individ materials, and which refers to a written on ual member with whom he dealt as the contract that has not been recorded, made b-ten tractor, in the absence of evidence that the the principal and obligee, is not within the owner was misled or injured by the failure meaning of the statute, and may be enforest of the subcontractor to correctly state the firm without violating the above section, Kipada name of the contractors, such error will not in- v. Allspaugh, 27 P. 662, 91 Cal. 234, followed validate the lien.-First Presbyterian Church Lumber Co. v. Neal, 21 P. 192, 90° Cal. 213. of Hutchinson v. Santy, (Kan.) 34 P. 974.

overruled; McFarland, J., holding that the 23. Mechanic's Lien Act 1889, (Sess. Laws cases

are distinguishable. — Kiessig . Alls1889, p. 249,) requires a person wishing to avail paugh, (Cal.) 34 P. 106. himself thereof to file with the county recorder Enforcement. a statement signed and sworn to by claimant, 81. A person who has furnished material for and, if a subcontractor, to serve a copy thereof a structure on a mining claim for a corporation on the owner at or before the time of filing. which he found in possession of the mire. Held, that the filing of a subcontractor's unveri- claiming it all, cannot enforce a lien fied fied statement, of which a copy was served on against the structure instead of the whole clain, the owner, and which was afterwards verified and therefore invalid, on the ground that, whe without notice to the owner, established no lien. he furnished the materials, the corporation bsd -Rice v. Carmichael, (Colo. App.) 34 P. 1010. not yet acquired title to that portion of the

24. Where work on a building is abandoned claim on which the structure was erected, as by the owners, the statement for a lien must be title cannot be tried in such an action.-Wi. filed within four months after the abandon- liams v. Mountaineer Gold Min. Co., (Cal) 31 ment, which, for such purpose, is equivalent to P. 702. completion; and the time of such abandon 32. Where the complaint in an action to ment is to be determined by the actual cessa- foreclose a mechanic's lien alleges that there tion of work, and not by the secret purposes was no contract between the owner and the of the owners.-Chicago Lumber Co. v. Merri- person who erected the building, there can be mack River Sav. Bank, (Kan.) 34 P. 1045. no judgment on proof that there was, and it is

25. An understanding between one who con. error for the court, on finding the latter, and tracted to build a church and the majority of without an amendment, to render judgment the trustees of the church that it should be ac- for plaintiff to the extent of 25 per cent of the çepted as completed when it was not so in fact contract price, which the owner failed to keep is not conclusive on the question of the time back, as required by the statute.-Reed F. Nors of completion. as against subcontractors claim- ton, (Cal.) 34 P. 333. ing to have filed lien statements within the stat 33. The fact that a bill to enforce a me utory time, First Presbyterian Church of chanic's lien shows that the improvement be Hutchinson v. Santy, (Kan.) 34 P. 974. longs to one person, and the land to others, all Filing lien against structures merely of whom are made parties, does not reader the -Improvements on mining claims.

bill demurrable.-Post v. Miles, (N. M.) 34 P. 26. Under Code Civil Proc. § 1183, providing Co. v. Same, Id.

586; Stahlin v. Same, Id.; Mountain Eleetrie that mechanics, material men, etc., performing 34. Code 'Civil Proc. $ 1184, relating to me labor or furnishing material in the construction chanics' liens, requires that 25 per cent of of any building or other structure, shall have the whole contract price shall be made payable a lien upon the property upon which they have at least 35 days after the final completion of bestowed labor or furnished materials, and that the contract. Sections 1193, 1195, authorize any person who performs labor on any mining a claimant, on establishing his lien, to recover claim has a lien upon the same, a lien for ma- costs and an attorney's fee. Held, in an action terial furnished for structures on a mining by a material man to enforce his claim agairst claim, to be used in operating the same, filed the 25 per cent. of the contract price retained against the structures, is invalid, as it must be by the owner, that the costs and attorner's fee filed against the whole claim. Williams v. are chargeable against the premises where the Mountaineer Gold Min. Co., (Cal.) 34 P. 702. sum so retained was not sufficient to satisfy

« PreviousContinue »