# Smith v. Faris-Kesl Construction Co.

> Idaho Supreme Court · March 27, 1915 · 27 Idaho 407

URL: https://www.frixlaw.com/law-library/cases/5170695

## Case

- **Full name:** J. W. SMITH v. FARIS-KESL CONSTRUCTION COMPANY, LTD., and EMMETT IRRIGATION DISTRICT
- **Court:** Idaho Supreme Court
- **Decided:** March 27, 1915
- **Citations:** 27 Idaho 407; 150 P. 25; 1915 Ida. LEXIS 78
- **Precedential status:** Published
- **Opinion:** On rehearing by Budge
- **Judges:** Bryan, Budge, Ease, Hearing, Morgan, Sullivan, Took
- **Cited by:** 69 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5170695

## Opinion text

ON REHEARING.
BUDGE, J.
— Petitions for rehearing were filed on behalf of each of the appellants in the above-entitled cause. After a careful examination of the petitions and the authorities therein cited this court concluded to submit to counsel for the respective parties the following questions, and grant a rehearing thereon:
(1) Whether or not this court should determine, under the pleadings and evidence in this ease, the nature, character and extent of the lien in favor of J. W. Smith, respondent, against the Emmett Irrigation District, more definitely than has been done in the opinion heretofore filed.
(2) Whether or not the Emmett Irrigation District is entitled to be subrogated to the rights of the holders of first mortgage bonds, viz., the $350,000 issue authorized by the Canyon Canal Company, and to what extent.
(3) Whether or not the item of $900 attorney fee is a lien against the property of the Faris-Kesl Construction Company.
So far as the first question that was submitted for argument is concerned, this court, in order to go beyond the original opinion and determine more definitely the nature, character and extent of the lien in favor of respondent Smith *436 against the Emmett Irrigation District, would necessarily be required to go outside the record and the issues made by the pleadings and anticipate certain litigation which may arise between persons not parties to this action to determine their interests and the extent to which the property of the Emmett Irrigation District will be subject, under the litigation, to the payment of the debt due to the respondent Smith. If these matters were properly before us, we would gladly dispose of them in order to avoid further litigation. These interests, no doubt, will be finally determined at the proper time and upon issues properly framed and supported by proof.
The second question may be disposed of by merely directing attention to the failure of the appellant Emmett Irrigation District to allege or establish, by evidence or otherwise, any fact or facts which would justify this court in applying the doctrine of subrogation in favor of appellant in this proceeding.
To the third and last question, the item of attorney fee, there is nothing further that can be added than is found in the original opinion which, in our judgment, is clearly decisive of that question.
We have reached the conclusion that the foregoing questions, as well as all other questions involved in the petitions for rehearing, and which were presented to the court upon reargument, were, correctly decided in the original opinion in this case, which is accordingly reaffirmed.
Morgan, J., and Bryan, District Judge, concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5170695. Public record. Not legal advice.