Spaulding v. Mammoth Spring Mining Co.

and delivered to said corporation, and on the same day caused a writ of attachment to be issued in said action, which was levied upon all the property of the corporation. At and prior to the date of said attachment said corporation was indebted to B. Spaulding and Daniel Dever for labor performed upon the mining property of said corporation. Denver assigned his claim for said labor to Spaulding, and on January 2, 1894, B. Spaulding commenced an action against the corporation to recover the same, and made appellant, Reilly, a party defendant. Pending the suit, E. Spaulding died, and his administrator was substituted as plaintiff. The action of Spaulding against the corporation was brought under an act -entitled “An act to provide for the payment of the wages of mechanics and laborers employed by corporations,” approved March 31, 1891 (Stats. 1891, p. 195), and which purports to create a lien in favor of laborers under the circumstances therein stated. Reilly was made a defendant for the purpose of determining the priority of liens. The corporation made default. Defendant Reilly moved to strike out a portion of the complaint, which motion was denied, and he excepted. A demurrer interposed by him to the complaint was also overruled, and he thereupon answered. This cause and the case of Reilly against the corporation were tried at the same time by the court without a jury, and judgments were entered in each case against the corporation. The findings in this case show all the facts necessary to establish Reilly’s attachment lien, and also find that the plaintiff is entitled to a lien under said statute, and that the lien of the plaintiff is superior to that of appellant, Reilly, and should be first satisfied out of the property of the corporation. Appellant contends, “as it is not alleged or found that the wages earned were due weekly or monthly, that that portion of the judgment awarding counsel fees, and decreeing that plaintiff is entitled to a lien as against appellant, should be reversed. ” As to the labor of the plaintiff, it was alleged that between the first day of June and the twenty-seventh day of December, 1893, he performed one hundred and seventy days’ labor upon the mine of the defendant corporation, and that his said services were reasonably worth $200 per month, and claiming a balance of $1,200. A second count alleged that on or about the first day of March, 1893, he was employed by the defendant cor

poration at the wages of $200' per month, and that from- said' first day of March, 1893, until the twenty-seventh day of December, 1893, he labored upon defendant’s mine nine and one-half months, making the aggregate amount earned $1,900, admitted a payment of $700, leaving a balance of $1,200. The third cause of action was upon the claim assigned to the plaintiff for services performed by Dever, and as to those services it was alleged that they were reasonably worth $3 per day. The court found that the services of the plaintiff were reasonably worth $150 per month, and that the services of Dever were reasonably worth $3 per day. Under these allegations and findings, the plaintiff is not entitled to a lien under said statute. In Keener v. Irrigation Co., 110 Cal. 627 , 43 Pac. 14 , this statute will be found set out in the opinion, at page 630, 110 Cal.; and page 14, 43 Pac., and it was there said: “By the terms of the first section of this act, it does not apply to all corporations, but only to those who, while doing business in this state, employ laborers and mechanics by the week or month, whose wages, under the terms of their employment, are payable weekly or monthly. It does not purport to impose upon those corporations any duty or liability toward all the mechanics or laborers whom they may employ, or to create a right in favor of those of its émployees whose wages are not earned or payable by the week or by the month. As the remedy sought to be enforced herein exists only by virtue of the statute, it was incumbent upon the plaintiff to bring himself within the terms of the statute, and to show that the wages earned by him were due weekly or monthly.” That ease was decided in department 1 and a hearing in bank was denied. In Ackley v. Mining Co., 112 Cal. 42 , 44 Pac. 330 , the same question was again presented, and, again decided in the same way in department 2. Hence the question has been considered by both departments. And in -the later case Keener v. Irrigation Co. was followed and approved, and we see nothing in the argument of respondent which would seem to require a reconsideration of the former decisions. The findings in this case clearly show that there was no agreement under which either Spaulding or Dever could be said to have been working by the week or the month, or that their wages, however earned, were payable either weekly or monthly.

In view of the above authorities, it is not necessary to consider the point made by appellant that the act of 1891, under which respondent claims a lien, is unconstitutional, nor is it necessary to notice either of the rulings above referred to. We advise that the judgment in favor of the plaintiff for the amount found due for labor, to wit, $1,715.43, and costs, $33.90, be affirmed, and that that portion of the judgment awarding counsel fees to the plaintiff, and declaring that plaintiff is entitled to a lien upon the property described in the complaint and judgment, and directing the sale of said property, be reversed, and that appellant recover his costs on this appeal.

We concur: Searls, C.; Belcher, C.

For the reasons given in the foregoing opinion the judgment in favor of the plaintiff for the amount found due for labor, to wit, $1,715.43, and costs, $33.90, is affirmed; and that portion of the judgment awarding counsel fees to the plaintiff, and declaring that plaintiff is entitled to a lien upon the property described in the complaint and judgment, and directing the sale of said property, is reversed; and it is ordered that appellant recover his costs on this appeal.