Venard v. Green

4 Utah 67

• Court: Utah Supreme Court
• Decided: January 15, 1885
• Status: Published

Opinions

Emerson, J.:

Venard and McManamon filed a joint complaint to foreclose two separate miner’s liens on defendant’s property, each lien and cause of action being separately stated as Required by statute,

It appears that at one time the case was 'dismissed as to Venard, for his non-appearance when it was called for trial. McManamon, however, obtained a judgment and decree of foreclosure on his lien, and an order for the sale of the property was made.

Subsequently Venard obtained an order setting aside the dismissal as to him, and reinstating the case. Subsequent to the filing of their miner’s liens, a judgment was obtained by creditors of the respondent, and their property sold on an execution issued thereon.

Upon the trial of the case as to Venard, the purchasers at the execution sale “were allowed to intervene.

The case was tried by the court without a jury, and judgment went against Venard, who prosecutes this appeal.

Among the findings of fact are the following:

“Second. That under and by virtue of a contract made by and between the plaintiff, Venard, and'the defendant, the Old Hickory Mining and Smelting Company, the plaintiff, Venard, entered into the service of the defendant company, on the fifteenth day of September, 1881, as superintendent, at and for the wages or salary of one hundred and fifty dollars per month, and board, and continued as such superintendent in the service of the defendant until the sixteenth day of December, 1881, at and for the said agreed price and stated allowance for such service of one hundred and fifty dollars per month, to be paid to him by the defendant, the Old Hickory Mining and Smelting Company, for such service as such superintendent.

“Third. That the wages and salary of the plaintiff, as such superintendent, while in the service and employment of the defendant, the Old Hickory Mining and Smelting Company, amount to, and are the sum of four hundred and fifty-five dollars. No part of which has been paid.

“Fifth. That on the tenth day of March, 1882, the plaintiff, Yenard, filed in the office of the county recorder of Beaver county, a notice of his intention to hold a lien upon the Old Hickory lode and mining claim, situated about four miles north of Milford, in Rocky mining district, in the county of Beaver and territory of Utah, the property of tbe defendant, the Old Hickory Mining Company; that by virtue of a contract made by and between him, the said Yenard, and the Old Hickory Mining and Smelting Company, he was employed by said company as the superintendent of its mine, for and during the term of three months and one day, commencing on the fifteenth day of September, and ending on the sixteenth day of December, 1881, at agreed price of one hundred and fifty dollars per month, and that he claimed and intended to hold a miner’s lien upon the Old Hickory lode and mining-claim, with all the tenements, hereditaments and appurtenances thereto appertaining, for the sum and amount of his wages as such superintendent of said mine, which amounted to the sum of four hundred and fifty-five dollars. That said notice was recorded by the recorder of Beaver county, in the territory of Utah, in his office, on the tenth day of March, 1882.”

The conclusions of law were as follows:

“1. That the claim of the plaintiff, Yenard, was, and became a lien and charge upon, and attached to the Old Hickory lode mine, or mining claim, which was the property of the defendant, the Old Hickory Mining and Smelting Company, at that time.

“2. That the judgment of B. F. Grant, against the Old Hickory Mining and Smelting Company, was, and became, a lien upon the Old Hickory lode mine, or mining claim, on the sixteenth day of March, 1882, subject to the lien of the plaintiff, Yenard.

“2}-. That the sheriff’s deed of June 15,1883, conveyed to Green and Austin all .the title and property of the Old Hickory Mining and Smelting Company, in and to the mining property hereinbefore described.

“8. That, by reason of the judgment decree of foreclosure, and order of sale obtained by the plaintiff, McMana-mon, against the defendant, the Old Hickory Mining and Smelting Company, and the sale of said mining property thereunder, and in pursuance thereof, the plaintiff is not entitled to the judgment or decree prayed for in this action.

“4. Tbat William G-. Greene and Edward Austin are properly made an intervening party in this action, and, as sncb intervening defendants, are entitled to a judgment tbat tbe plaintiff, Thomas Yenard, take nothing as against them, or either of them, in this action', and that said Yen-ard is not entitled to a decree to enforce his said lien, or to foreclose the same against the said mining property, or to any part thereof, and a judgment for their costs expended by them in the intervening suit.

“5. That the plaintiff, Yenard, is not entitled to judgment against the defendant, the Old Hickory Mining and Smelting Company, for his wages, or for a decree, as prayed for in the complaint.

“6. That the defendant, the Old Hickory Mining and Smelting Company, are entitled to judgment against the plaintiff, Yenard, for its costs in this action.”

The conclusions of law are not supported by the findings of fact, but are directly* contrary thereto.

The appellant was entitled to a judgment against the respondents for the amount of his wages, which the court finds due and unpaid, and I can preceive no reason why he was not entitled to a decree foreclosing his lien, and for an order of sale as against the intervenors.

His lien antedated that of the judgment upon which their right was founded, and he has done nothing to forfeit it, waive or postpone it.

It can make no difference with his rights as against the respondents or intervenors, that his co-plaintiff had obtained a judgment on his claim, and a foreclosure of his lien.

The record shows that the property will more than satisfy both liens, so that there will be no question about apportioning the proceeds of the sale.

The purchasers, at the execution sale, who are the in-tervenors here, must be held to have purchased the property subject to the prior lien of the appellant.

The judgment is reversed, and the case remanded.

ZANE, C. J., concurred. Twiss, J., dissented.