
    HATHAWAY v. UNITED TINTIC MINES CO.
    No. 2440.
    Decided April 30, 1913
    (132 Pac. 388).
    1. Appeal and Ebeob. — Ciebk’s Cebtificate of Appeal Bond — Conclusiveness. The clerk’s certificate that an. undertaking on appeal in due form has been properly filed, made in compliance with the statute, is conclusive evidence that the appellant has complied with the law respecting the filing of an undertaking on appeal. (Page 521.)
    2. Mechanics’ Liens — Action to Enfoece — Bubden of Peoof. Claimant, in an action to foreclose a mechanic’s lien, whose allegations were denied by answer,' had the burden of proving that he was entitled to a mechanic’s lien and that he had complied with the statute. (Page 522.)
    3. Appeal and Ekbok — Findings—Evidence to Suppoet. The trial court should not make a finding of fact where there is no evidence to support it, and its judgment thereon will be reversed. (Page 522.)
    4. Appeal and Eeeoe — Review—Remand. Where (the evidence did not establish a mechanic’s lien, but would support a judgment for a specified sum, the court on appeal from a judgment for claimant will not enter judgment where claimant may be able to establish a lien and where the case was tried in the absence of defendant’s counsel, but will remand for a new trial. (Page 523.)
    5. 'Costs — On Appeal — Appellant Failing to Appeae at Tbial. Where -counsel for appellant in an action to foreclose a mechanic’s lien was personally served with notice of trial, but did not appear, the court on reversing the judgment for claimant will deny appellant his costs on appeal. (Page 523.)
    Straup, J., dissents in part.
    Appeal from District Court, Fifth District; Hon. Joshua, Greenwood, Jud'ge.
    Action by J. S. Hathaway against the United Tintic Mines Company.
    Judgment for plaintiff. Defendant appeals.
    REVERSED AND REMANDED
    
      
      0. JE. Norton for appellant.
    
      Miner and McKnight for respondent.
   FRICK, J.

Tbis is an action in equity to foreclose a mechanic’s lien. The district court entered a judgment or decree foreclosing said lien, and to satisfy the same ordered the property sought to be covered thereby sold and the proceeds of sale distributed in accordance with the decree. The appellant presents the record on appeal and asks us to reverse the judgment for the reasons hereinafter stated.

A preliminary question must be first determined. Respondent interposed a motion to dismiss the appeal upon substantially the following grounds:

(1) That the appellant had practically abandoned the appeal and had not filed the same in time; and (2) that an undertaking on appeal as provided by our statute had not been filed. The first ground is untenable for the reason that the record affirmatively shows that a notice of appeal was served and filed within the time and in the manner and form required by law; and, further, that •appellant after doing so complied with the law in perfecting the same. Nor can the motion be sustained upon the second ground for the reason that the clerk, among other things’, -certifies “that an undertaking on appeal in due form in said action has been properly filed in my office.” The clerk’s certificate is in compliance with the requirements of our statute, and is conclusive evidence that the appellant has complied with the law respecting the filing of an undertaking on appeal. The motion to dismiss the appeal must therefore be overruled.

Proceeding now to the merits, we remark that, while appellant has assigned a number of errors, those that seem, to be relied on in the brief, in substance, are that there is no evidence whatever in support of certain findings of fact made by the district court, and that the judgment or decree is contrary to law.

After a careful examination of tbe evidence produced by tbe respondent at tbe bearing, all of wbicb is certified to tbis court, we are clearly of tbe opinion that tbe first assignment is well taken. Tbe action was one to foreclose a mechanic’s lien claimed against certain mining property. All of tbe allegations of tbe complaint were denied in appellant’s answer. It therefore became necessary for respondent to prove facts from wbicb tbe court could legally determine and find that be was entitled to a mechanic’s lien, and that he bad complied with tbe terms of our statute relating to tbe establishment of mechanics’ liens. There is no evidence whatever in tbe record from wbicb tbe court couldy legally determine that tbe respondent bad in any particular complied with tbe terms of tbe mechanic’s lien statute. There is no evidence whatever that a “notice of intention” to claim a lien was ever made or filed as required by our lien law. Notwithstanding tbe denials in tbe answer, and that no evidence whatever was adduced at tbe bearing with respect to tbe matters just stated, tbe court nevertheless found tbe facts showing that tbe respondent bad complied with tbe provisions of our mechanic’s lien statute, and hence was entitled to a lien against certain mining claims. In addition to tbis, tbe court without any evidence whatever found that respondent was entitled to twenty dollars costs for preparing and filing a lien, and twenty-five dollars as an attorney’s fee for foreclosing the same. Tbe court entered a judgment or decree foreclosing tbe lien aforesaid and for tbe costs and attorney’s fee aforesaid, and ordered the mining claims sold to satisfy tbe amount claimed in said lien, and tbe costs and fees aforesaid.

The court might just as well have entered a judgment and established and foreclosed a mechanic’s lien against any other citizen of tbis state as against appellant so far as tbe evidence justified such a judgment. Tbe finding of facts and entering of judgments are solemn acts, and no court should permit itself to make a finding of fact where tbe record is conclusive, as in this case, that there is absolutely no evidence to support such finding.

The evidence adduced at the trial would, however, support a judgment at law for a specific sum of money. In view that this is an equity case and one in which we have power to enter a decree or judgment, we have hesitated somewhat whether or not to remand the case for a new trial. As we view the record, it would hardly be fair to either party for us to enter or direct merely a money judgment for the following reasons;

(1) Because the respondent may be able to establish a mechanic’s lien, and if he can do so he should be given the benefit of it, including the statutory costs and fees; (2) because the appellant, as we have seen, denied all liability, as well as the existence of a lien. The case was, however, tried in the absence of appellant’s counsel for some reason not disclosed by the record.

Nor the foregoing reasons and inasmuch as neither the findings nor judgment can stand, it is deemed but fair to remand the case for a new trial and give each one of the parties an opportunity to make good his claims as they appear from the pleadings.

The judgment is therefore reversed, and the cause is remanded to the district court, with directions to grant a new trial, hear the evidence, and make findings of fact and conclusions of law, and enter judgment accordingly.

The record 'shows that appellant’s counsel was personally served with proper notice of the time and place of trial, and no cause whatever is shown why he did not appear at the trial; but the record does show that he did not appear. Had he appeared, it is quite probable that upon the slightest objection upon his part the respondent might have submitted the formal evidence which was necessary to entitle him to recover. When the errors complained of could be so easily overcome by merely pointing to them in the court below, we think that the party failing to do so should not be permitted to recover a judgment for costs against his adversary, and especially not when it appears, as in tbis ease, that tbe plaintiff is impecunious and' under tbe statute is permitted to prosecute bis ease as an impecunious person. Tbe foregoing reasons impel us to exercise tbe discretionary power vested in us. with respect to costs and to deny appellant bis costs on tbis appeal.

McCARTY, C. J., concurs.

STRAUP, J.

I concur, but not in tbe order relating to costs. If an aggrieved litigant is entitled to costs when a case is reversed for prejudicial error committed in bis presence, I think for stronger reasons should be have costs upon ai reversal for such error committed in bis absence. Tbe plaintiff bad tbe burden. He was unable, or failed, to make a case even without an adversary, and procured tbe court to make findings without evidence. It is not shown that tbe defendant was to blame for that. It should not be expected that tbe defendant unsolicited ought to have been present and to have assisted tbe plaintiff in making a case against itself and in guarding him against blunders. Of course, it is within our power and discretion to deny costs to tbe appellant, but I see no good reason for doing so.  