
    [No. 11352.
    Department One.
    September 9, 1886.]
    W. A. PALMER, Respondent, v. UNCAS MINING COMPANY et al. HARVEY WILCOX, Appellant. VICTOR HOLM, Respondent, v. UNCAS MINING COMPANY et al. HARVEY WILCOX, Appellant.
    Miner’s Lien—Foreclosure of — Allegation of Non-payment—Demurrer. — In an action to foreclose a miner’s lien, an allegation that the defendant, for whom the plaintiff performed the services for which the lien was filed, has paid to the plaintiff no part of the amount due therefor, and that the same is now due and owing to the plaintiff from the defendant, is a sufficient averment of non-payment, in the absence of a demurrer.
    Id. — Right to Lien — When not Lost by Giving Order on Mine-owner. — A miner does not lose his right to a lien by giving an order on the owner of the mine for a portion of the amount due him for his labor thereon, if the order was not received by the payee in payment of any claim against the drawer, nor paid or accepted by the drawee, but returned to the drawer before the filing of his claim of lien.
    Id. — Superintendent of Mine — Right of to Lien.—One performing manual labor in and upon a mine is entitled to a lien therefor, though called the superintendent of the mine.
    Deposition — Stipulation for — Witness out of State—Estoppel.—• Where the parties stipulate that the deposition of a witness out of the state may be taken by a designated person, and when taken may be used on the trial, they are afterwards estopped from objecting that the deposition was not taken under a commission issued by the trial court.
    Appeal from a judgment of the Superior Court of Sierra County, and from an order refusing a new trial.
    The actions were brought for the foreclosure of certain miner’s liens. Prior to the trial of the actions, the counsel of the respective parties stipulated that the depositions of certain witnesses residing out of the state might be taken before a designated justice of the peace, and that when so taken the depositions might be used on the trial of the actions. On the trial, the appellant objected to the introduction of the depositions in evidence, on the ground that they were not taken under a commission issued from the trial court. The further facts are stated in the opinion.
    
      
      Henry Miller, and Van Clief & Wehe, for Appellant.
    
      M. Farley, and S. A. Smith, for Respondent Holm.
    
      S. B. Davidson, for Respondent Palmer.
   Ross, J.

Palmer and Holm commenced separate actions against the Uncas Mining Company and others for the foreclosure of miners’ liens, which actions were subsequently consolidated and tried together. So far as Holm’s suit is concerned, it is objected,—1. That his complaint is fatally defective in that it does not contain a sufficient allegation of non-payment; 2. That the labor performed by Holm was not such as would entitle him to a lien; and 3. That “ before filing his lien, Holm transferred nearly all his claim to Beaver and Junot, but afterward had it reconveyed, and filed a lien” for the amount claimed to be due him.

In respect to the complaint, the allegation is, that the defendant, the Uncas Mining Company, for which company it is averred the plaintiff rendered the services, “ has paid to plaintiff no part of said $171, and the same is now due and owing to the plaintiff from said defendant.” No demurrer was interposed, in the absence of which it cannot be held the allegation is insufficient.

The case shows that the labor for which the lien in question is claimed was rendered in and upon the mining claim.

The fact that Holm gave to Beaver and Junot orders on the mining company for portions of the amount due him did not divest his right to the lien claimed. The orders were not received by Beaver or Junot in payment of their respective claims against Holm, nor were they paid or accepted by the mining company, but were returned to Holm before the filing of his claim of lien.

In respect to the suit of Palmer, it is said that his assignor, Schmidt, was not entitled to a lien because he was a “ mining superintendent.” Whether a mining superintendent is under the statute entitled to a lien or not, the case shows that although Schmidt was called superintendent, the service for which his claim of lien was filed was manual labor done by him in and upon the property upon which the lien is sought to be established.

The stipulation of counsel under which the depositions of Schmidt and Palmer were taken estop appellant from claiming that they were not taken under a commission issued from the court.

Judgment and order affirmed.

McKinstry, J., and Myrick, J., concurred.  