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eBook details

• Title: Luebben v. Metlen
• Author : Supreme Court of Montana
• Release Date : January 25, 1940
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 55 KB

Description

Mechanics Liens ? Foreclosure ? Costs ? Effect of Acceptance of Tender on Right to Costs ? Appeal and Error ? Absence of Evidence from Record ? Correctness of Findings of Trial Court not Reviewable ? Attorneys Fees ? When Supreme Court will not Interfere With Award. Mechanics Liens ? Foreclosure ? Absence of Evidence from Record on Appeal ? Review of Findings Foreclosed. 1. Where, in an equity case (foreclosure of mechanics lien) the evidence is omitted from the record on appeal, the supreme court is precluded from a review of the facts found by the court, and the reviewing tribunal and the parties are bound by the findings. - Page 351 Same ? Costs ? Foreclosure Suit not Action for Recovery of Money ? Theory of Case. 2. An action for the foreclosure of a mechanics lien is not an action on contract for the recovery of money, and after its commencement a party may not change the theory of the case to one for the recovery of money so far as the matter of costs is concerned. Same ? Lien Eliminated by Tender of Defendant ? Costs. 3. Where a mechanics lien was eliminated by the trial courts conclusion that it had been discharged by defendants tender to plaintiff as on an account stated, and plaintiff was awarded a judgment for $277.65, the suit did not become an action for the recovery of money so as to entitle him to the benefit of subdivision 3 of section 9787, Revised Codes, allowing costs to plaintiff in such an action where he recovers over $50. Same ? Acceptance of Tender by Defendant ? Defendant Held Prevailing Party and Entitled to Costs. 4. Where a mechanics lien claimant, after agreeing to an account stated and accepting the money tendered thereunder by defendant, sued for more but failed to recover more, defendant was the prevailing party and as such was entitled to costs. Same ? Costs are in Nature of Incidental Damages Suffered by Successful Party. 5. Costs of suit are in the nature of incidental damages allowed to the successful party to indemnify him against the expense of asserting his rights in court, when the necessity for so doing was caused by his adversarys breach of a legal duty. Same ? Acceptance of Tender ? Failure of Party Making Tender to Make Deposit in Court ? Circumstances Under Which Statutory Requirement Waived. 6. Where plaintiff in a mechanics lien suit after agreeing to an account stated and accepting defendants tendered check for the amount agreed upon, held it for several months and did not demand that defendant make a deposit in court as provided by section 9794, Revised Codes, he will not be heard, in an effort to evade payment of defendants costs of useless litigation, to assert that the provision of the statute was not complied with but will be held to have waived the requirement. Appeal ? Attorneys Fees ? When Supreme Court will not Interfere With Award. 7. With an award of attorneys fees allowed defendant in a mechanics lien suit, reduced from $250 to $150, the supreme court will not interfere unless there appears to have been a clear abuse of discretion.

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