Blake v. Crystalline Lime Co. , 37 Idaho 637 ( 1923 )

ON PETITION FOR REHEARING.

DUNN, J.

— Appellant petitions for a rehearing on the ground that this court erred in sustaining the lien claims to the amount of $1,125, the amount admitted by the answer to be due, with attorney’s fees added, and holding the balance of the amount allowed by the district court to be a personal judgment, since the judgment appealed from is in rem and not in personam, and on the further ground that appellant was entitled to a jury trial as to any items for which respondents were not entitled to a lien.

Notwithstanding the admission of respondent that the judgment is exclusively in rem, we are of the opinion that it is a personal judgment. The employment by the company through its president is admitted, the company appeared and defended the action and the pleadings and evidence justify a personal judgment, so there is no reason why such a judgment should not have been entered. (Pacific Iron & Steel Works v. Goerig, 55 Wash. 149, 104 Pac. 151; Farnham v. California Safe Deposit & Trust Co., 8 Cal. App. 266, 96 Pac. 788; Becker v. Superior Court, 151 Cal. 313, 90 Pac. 689; Parish v. Murphy, 51 Ga. 614; West v. Grainger, 46 Fla. 257, 35 So. 91.)

There is no merit in the contention as to the right of a jury trial. The court had the entire controversy as to the claim of lien before it with jurisdiction to determine the facts without the aid of a jury. It determined the fact as to services rendered by lien claimants in favor of respondents, entered a judgment therefor against appellant, and decreed a lien for the entire amount of the judgment on the mining claims of appellant, which lien it ordered to be foreclosed. (Pacific Iron & Steel Works v. Goerig, supra.) This court held that respondents were entitled to a lien for a smaller amount, but did not disturb the judgment for the excess above the lien claim. While the judgment did not expressly provide for the entry of a deficiency judgment, subdivision 3 of C. S., see. 7351, provides for execution for any balance that may be due, which provision, in effect, gives a deficiency judgment.

On re-examining the matter, however, we are of the opinion that we erred in sustaining the lien for the amount admitted to be due. If respondents’ assignors were entitled to a lien for only that amount then the record shows that their notices of lien were not filed in time, since the services must have terminated in July and the notices of lien were not filed till November 15th. This conclusion would deprive appellant of the allowance for attorney’s fees and for preparing and filing notices of lien.

The original opinion is therefore modified by affirming the judgment for $1,400 on the first claim of lien and $607.25 on the second claim, but denying any part of either claim as a prior lien on appellant’s property. Petition for rehearing denied.

■McCarthy and William A. Lee, JJ., concur.