[No. 578. October 30, 1894.]

WILLIAM H. BUCHER, TRUSTEE, APPELLEE, V. MOSES L. THOMPSON ET AL., APPELLANTS.

APPEAL INTERLOCUTORY ORDER, NOT APPEALABLE.-An order in a foreclosure suit, under a deed of trust, decreeing that the deed shall have priority over certain mechanics' liens, where proof remains to be taken, and a decree rendered for the sale of the property, and the satisfaction of the debt of appellee, is a merely interlocutory order from which an appeal will not lie.

APPEAL, from an order in favor of complainant, decreeing, on demurrer, that a deed of trust should have priority over certain mechanics' liens, from the Third Judicial District Court, Sierra County. Motion to dismiss appeal, sustained.

The facts are stated in the opinion of the court.

H. L. PICKETT for appellants.

As to what is a continuous contract, such as to give a miner the benefit of a lien until he ceases to work upon the property, see Kryme v. Occidental Mill & Mining Co., 8 Nev. 219.

A miner's lien begins with the commencement of his work, and ceases with the completion of it. 9 Morrison, 406.

His lien stands upon the same footing as a mechanics' lien. 2 Jones on Liens, pp. 176, 1212; 94 U. S. 545; 18 Wall. 659–661; 2 Montana, 115.

F. W. PARKER for appellee.

SMITH, C. J.-Appellee, Wm. H. Bucher, trustee, moves to dismiss the appeal upon the ground that the decree appealed from in this case is not a final decree

and does not authorize an appeal. Said decree is in words as follows:

"Wm. H. Bucher, trustee, v. Moses Thompson et al., No. 615.

"This cause coming on to be heard upon the bill of complaint herein and respondents answer, etc., and the demurrer filed by complainant to the said answer, and the court having heard solicitors for the respective parties, and being advised in the premises, doth overrule the said demurrer as to all grounds taken therein, except as to the second and fifth-the second ground having been heretofore passed upon by the supreme court of this territory, as to the said fifth ground it is adjudged and decreed by the court that the said demurrer be, and it hereby is sustained.

"It further appearing to the court from the bill of complaint herein that the deed of trust mentioned therein was filed for record with the probate clerk and ex officio recorder of said county on the twenty-second day of July, 1890, and the court being of opinion that the contracts of labor set up in said respondents answer are contracts to labor from day to day, terminable at the end of any day by either party thereto, it is hence ordered, adjudged, and decreed that the said deed of trust do take priority over the said lien claims, and each and all of them, for all work done by said claimants under the contracts set up in said lien claims, from and after the said twenty-second day of July, 1890. "Done at Chambers this twenty-fifth day of July, 1893, at Las Cruces, New Mexico.

"ALBERT B. FALL, Judge, etc."

This was a foreclosure suit by the appellee as trustee to secure payment to one John W. Zollars of a promissory note in the sum of $16,500 to which defendants, who are appellants here, file answer setting up that mechanics' liens, which they claim to be prior

INTERLOCUTORY

pealable.

in dignity to the lien of the deed of trust order, not ap being foreclosed. The decree quoted was upon the demurrer to said answer. From an inspection of the decree it readily appears that the decree is merely interlocutory and by no means disposes of the cause before the court.

There remains proof to be taken as to the amount due, a decree for the sale of the property, and the satisfying of the debt of appellee.

In the words of Chief Justice WAIT, "It has been many times decided that a decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done but to make the sale and payment of the proceeds, is a final decree for the purpose of an appeal." Grant v. Phoenix Ins. Co., 106 U. S. 429.

Tested by this rule it clearly appears that there is no final decree and the motion to dismiss is sustained, and it is accordingly so ordered.

COLLIER and FREEMAN, JJ., concur.

[No. 568. October 30, 1894.]

JOHN W. SCHOFIELD, RECEIVER OF ALBUQUERQUE NATIONAL BANK, PLAINTIFF IN ERROR, V. STEPHEN M. FOLSOM, DEFENDANT IN ERROR.

ASSIGNMENT FOR BENEFIT OF CREDITORS - ASSUMPSIT - ATTACHMENT AFTER EXECUTION OF DEED OF ASSIGNMENT AND BEFORE FILING AND APPROVAL OF ASSIGNEE'S BOND.-By section 8, Act, February 19, 1889, it is provided that, in case of a voluntary assignment for the benefit of creditors, the assignment "shall not become operative," and the assignee shall not enter into possession of the property assigned until he has executed "a good and sufficient bond." Section 37, Act, February 20, 1889, provides that "no process of attachment shall issue after such assignment has been duly made, as in this act contemplated;" and, by the first section of this act, the only thing required of the assignor is that he execute an assignment

according to the formalities required for the conveyance of real estate. In a suit in assumpsit, by attachment, where the writ was issued and levied after a deed of assignment had been executed and before the assignee's bond was filed and approved, and the court below, on motion of defendant, quashed the writ, -Held: The attachment was properly quashed.

ERROR, from an order in favor of defendant, quashing an attachment, to the Second Judicial District Court, Bernalillo County. Affirmed.

The facts are stated in the opinion of the court.

W. B. CHILDERS for plaintiff in error.

Courts discharging statutory duties and exercising statutory powers, such as are authorized by the statute, can not go beyond the statute itself. Railroad Co. v. Telegraph Co., 112 U. S. 307; Thatcher v. Powell, 6 Wheat. 116.

The performance of a ministerial act by a judicial officer does not constitute the act a judicial proceeding. People v. Bush, 40 Cal. 344; 12 Am. and Eng. Encyclopedia Law, 5, et seq.; Cohan v. Barnett, 5 Cal.

The rule that the reenactment of a statute is an adoption of the decisions construing it has its limitations. Savings Bank v. U. S., 19 Wall. 237; McDonald v. Henry, 110 U. S. 628; Endlich on Inter. Stats., p. 518, sec. 371; Gage v. Smith, 79 Ill. 224; Jamison v. Burton, 43 Iowa, 285. See, also, Ingraham v. Regan, 23 Miss. 213.

In many states similar statutes are in force, and the things required by the statute are held to be conditions precedent, and mandatory. Jaffray v. McGhee, 107 U. S. 361; Gilkerson-Sloss Com. Co. v. London, 13 S. W. Rep. 514; Cohen v. Barton, 21 Atl. Rep. 63; Turnipseed v. Schaefer, 76 Ga. 109; Fecheimer v. Baum, 43 Fed. Rep. 728; August v. Calloway, 35 Id. 384; Shakman v. Schlueter, 46 N. W. Rep. 542;

People v. Colerick, 34 Id. 686; Wadleigh v. Schreider, 15 Id. 839; Rendlemann v. Williard, 15 Mo. App. 376; Douglass v. Cissna, 17 Mo. App. 61, 62; Winn v. Madden, 18 Id. 265.

Acts of the same session are parts of the same act, and have effect from the same day, and are taken together as parts of the same act. Brown v. Barry, 3 Dallas, 364. See, also, U. S. v. Freeman, 3 How. 564; Sedg. Const. Stat. 209, and note; Powers v. Shepard, 48 N. Y. 543; Suth. on Stat. Const., sec. 283; Town of Highgate v. State, 7 Atl. Rep. (Vt.) 898; Sedg. Const. Stat. 209, and note; Peirce v. Atwood, 13 Mass. 334; Endlich on Inter. Stats., sec. 45, and cases cited. Section 8, chapter 67, Laws, 1889, is not repealed by implication. Wood v. U. S., 16 Pet. 363; McCool v. Smith, 1 Black, 459; State v. Macon Co. Court, 41 Mo. 459; Suth. on Stat. Const., sec. 137; Ex parte Smith, 40 Cal. 419.

To

Section 8, chapter 67, provides that, "the assignment shall not become operative and the assignee shall not take possession" until he has given bond. "become operative" is to take effect. Douglass v. Cissna, 17 Mo. App. 61, 62. See, also, Hartzler v. Tootle, 85 Mo. 28, where the word "inoperative" was used.

If there be any doubt as to the sense in which a word is used in sections of the same act, prior or subsequent acts in which the word is used on the same subject may be resorted to. Alexander v. Mayor, 5 Cranch, 8; Reiche v. Smythe, 13 Wall. 162; Suth. Stat. Const., sec. 229.

But words are to be taken in their natural and ordinary sense. Millard v. Lawrence, 16 How. 251; Suth. Stat. Const., sec. 248.

Where the meaning of a statute is plain, it is the duty of the court to enforce it according to its obvious terms. Thornley v. U. S., 313.