Black v. Appolonio , 1 Mont. 342 ( 1871 )

Knowles, J.

This is an action to enforce a mechanic’s lien against the Walla Walla Hotel, in the town of Helena, for work and labor done thereon in the erection of the same.

Judgment was given by the court below against Appolonio for $719, and a lien was awarded against the said property for the sum of $600.

The first error assigned is the refusal of the court below to grant a continuance on the affidavits filed and presented in the record.

The refusing or granting a continuance rests in the sound discretion of the court to whom the application is made. 11 Cal. 21; 23 id. 156.

This court cannot review this discretion, unless it was grossly abused. The court, as appears of record, upon the application of appellant, granted a continuance for one term for the purpose of allowing appellants to procure the testimony of the very witnesses named in this application. One of these witnesses, and the most important in the case, as appears by the decree, had been duly served with summons in this case, and had made default, and in law confessed the allegations of the complaint. A court, in passing upon a motion for continuance, is not confined to the statements in the affidavit, but can take into consideration those facts which are within his judicial knowledge concerning the condition of the country and the means of communication in determining whether due diligence has been used. Taking all these matters into consideration we can find no abuse of discretion.

The second point made by appellants is, that the lien should be set aside, for the reason that respondent claimed a lien for a greater amount than the court below found he was entitled to.

This court held, in the case of Mason & Duke v. Germaine, that a claim for a lien for a greater amonnt than a party shows himself entitled to would not vitiate the lien, if the same was unaccompanied by any fraud. This court cannot infer fraud from the facts presented in this record. The mere fact that an excess was claimed as a lien over what the court found the respondent entitled to is not sufficient.

The case of Edgar v. Salisbury, 17 Mo. 271, is not in point. The question of fraud was not presented in that case. All that the court then decided was, that where it appears on the face of the pleadings that a party has claimed a lien for services for which the law gives no lien in the same notice for a lien for services for which the law does give a lien, and in the notice of lien an amount is claimed in solido, and no items specifying the amount due for each service on demurrer, the court will give judgment for defendant, for the reason that it cannot separate the amount, and tell what is a valid lien and what not.

It appears from the cases cited in Houck on Liens, that there is some conflict of opinion upon this point. While we are fully aware that the statute, giving mechanics and others liens, is in derogation of common law, and provides an extraordinary remedy, yet it is a remedial statute, and should be so construed as to further the object intended. Under our statute a mechanic can claim a lien for services under an implied contract. If the strict construction claimed is to prevail, then, should a mechanic fail to determine the exact amount a court or jury, under the testimony, might find his services to be reasonably worth, his lien would fail. It appears to us that all our statute requires is, that a person wishing to avail himself of the benefits of it should honestly state his account. The term, “just and true account,” does not necessarily imply more than this. Neither does “a just or true account” imply, necessarily, the exact account a jury or court might find due under the contract. The case of Hoffman et al. v. Walton et al., cited in Houck on Liens, as a case decided in Missouri, gives too strict a construction of a statute similar to ours. In the case of implied contracts it would make it useless, and afford no relief to those it was intended to. If a mechanic should make a mistake in addition, and claim one dollar more than he was entitled to, this would vitiate his lien. The definition of “just and true account,” it decides, In effect, to be an exact account. Considering the character of this statute, securing to mechanics and others liens, and the class of community intended to be protected by it, this construction of the statute may be said to stick in the bark.

Houck on Liens says, “that in States where a lien is given on an implied contract, it would be doubtful whether so strict a construction would be given as in Missouri.” We can see no difference in principle in the construction of the statute, whether the claim for a lien was on an express or implied contract. Such a statute should be strictly pursued, while it should be liberally construed.

The court below found no fraud on the part of the respondent.

Judgment of the court below affirmed.

Judgment affirmed.