
    GREENKALGH v. UNITED TINTIC MINES CO.
    No. 2441.
    Decided April 30, 1913
    (132 Pac. 390).
    Costs — Appeal—Failure to Appear in Trial Court. Where appellant failed to appear at the trial in the court below, the court on reversing and remanding for new trial may order that he recover no costs on the appeal.
    Straup, J., dissents in part.
    Appear from District Court, Fifth District; Son. Joshua Greenwood, Judge.
    
      Action by Dave Greenhalgh to foreclose a mechanic’s lien against the United Tintic Mines Company.
    Judgment for plaintiff. Defendant appeals.
    REVERSED AND REMANDED, WITH DIRECTIONS.
    
      G. E. Norton for appellant.
    
      Miner and! McKnight for respondent.
   FRICK, J.

This is an action in equity to'foreclose a mechanic’s lien. The proof, findings of fact, and judgment are precisely in. the same predicament as were those in the preceding case of Hathaway v. United Tintic Mines Co., 42 Utah, 520, 132 Pac. 388, just decided by us. This ease is therefore controlled by the decision in that one.

For the reasons there stated, the judgment is reversed, and the cause is remanded to the district court, with directions to grant a new trial, hear the evidence, make findings of fact and conclusions of law, and enter a judigment accordingly. For the reason that appellant failed to appear at the trial in the court below, it is ordered that he recover no costs on this appeal.

McCART'Y, C. J., concurs.

STRAUP, J.

I concur, but not in the order relating to costs. For the reasons stated by me in Hathaway v. United Tintic Mines Co., I think the appellant is entitled to costs.  