Benbow v. The James John, 121 P. 899

Benbow v. The James John

121 P. 899 | Or. | 1912

Mr. Justice McBride

delivered the opinion of the court.

It is claimed that the complaint does not state facts sufficient to constitute a cause of action and does not show jurisdiction of the State court to hear this cause, because it appears from the complaint that the labor was performed by way of repairs upon a boat theretofore existing and navigating the waters of the Willamette River, and that therefore the lien was maritime in its nature and could not be enforced in the State court.

1. Conceding, without deciding, that defendants could raise the question, after having appeared and given an undertaking for the release of the boat, and after answering without any plea to the jurisdiction, we think the objection comes too late. The complaint is in the same condition now that it was at the last appeal, and every objection that could have been made to its form or substance, whether actually made or discussed, or not, is concluded by that decision. All questions which could have been raised upon the first appeal are res adjudicata. 3 Cyc. 398; Hanley v. Combs 60 Or. 609 (119 Pac. 334) ; Smith v. Seattle, 20 Wash. 613 (56 Pac. 389) ; Smyth v. Neff, 123 Ill. 310 (17 N. E. 702) ; Dilworth v. Kurtz, 139 Ill. 508 (29 N. E. 861). The circuit court was correct, therefore, in holding that the complaint was sufficient to justify the admissison *156of evidence, tending to show that a practically new boat was constructed.

2. This being an action at law, the findings of the circuit court upon the facts take the place of the verdict of a jury, and are conclusive upon this court if there is any evidence to sutain them. Hallock v. Portland, 8 Or. 29; Courtney v. Bridal Veil Box Factory, 55 Or. 210 (105 Pac. 896).

3. The evidence of plaintiff tended to show that part of the hull of the boat was built at St. Johns; that it was then towed to Portland to the East Side Boiler Works, where plaintiff finished the hull and put in part of the machinery; that it was then moved north of the Morrison street bridge, and the remainder of the machinery was put in, also the cab and other woodwork; and that the boat was not named until after plaintiff had finished this work. Even if there had been some sort of a boat in existence and use before plaintiff began his work, yet, if his labors went to the extent of destroying its identity, it amounted to the construction of a new boat. McMaster v. One Dredge, (D. C.) 95 Fed. 832; The Victorian 24 Or. 121 (32 Pac. 1040: 41 Am. St. Rep. 838). The mere fact that the partially completed hull had been put in the water and towed from one place to another for the purpose of completing the work was not such a launching or devotion to maritime purposes as made subsequent work on the vessel a maritime lien. The Paradox, (D. C.) 61 Fed. 860; The Count De Lesseps, (D. C.) 17 Fed. 460; People’s Ferry Co. v. Beers, 20 How. 393 (15 L. Ed. 961) ; The Iosco, 13 Fed. Cas. 89.

4. The contention of the American Surety Company cannot be sustained. The appeal taken was from the whole judgment, and the reversal reversed the entire judgment and placed the parties in the same situation which they occupied before the judgment was rendered. *157This court held that, where a judgment is self executing, a party is not liable in tort for an act done in pursuance of it, while it was still in force. This is on the theory that an act, lawful at the time of its commission, will-not become a trespass by reason of a reversal of the judgment. Porter v. Small,— Or. — (120 Pac. 393, 398). For all other purposes than as a protection for affirmative acts done while it was in force, a reversed judgment becomes mere waste paper. Freeman, Judgments (3ed.) §§ 333, 481.

5. The fact that the surety company presented a copy of the judgment to the sheriff and demanded and received the return of its undertaking does not affect its liability. There is no provision of the law requiring the return of such undertaking, and the fact that the surety company has obtained physical possession of it does not impair its validity. Section 309, L. O. L., cited by counsel for defendant as authority for the act of the sheriff in surrendering the undertaking to the defendant has reference solely to undertakings on attachment. Section 7513, L. O. L., which relates to proceedings to enforce liens of the character here involved, provides that the defendant may deposit money in lieu of the undertaking otherwise required; and further provides that, if the judgment be for the defendant, the money so deposited shall be returned, but nowhere provides for a return of the undertaking. Expressio unius est exclusio alterius. Prudence would suggest that the sheriff should hold possession of such undertaking, at least until the time for taking an appeal had expired, and even then we know of no statute which requires him to surrender it without an order of the court directing him to do so.

6. It is contended by defendant that, as the contract with plaintiff was made. on December 24th, and the one between Bilyeu and Herstel and the owners of the *158boat was dated December 27th, plaintiff can have no lien for that portion of his services embraced in this contract and amounting to $525. But this objection is not sound. The testimony shows that the work was done and materials furnished at a time when Bilyeu and Herstel had a contract with the owners, and this is all that the law requires.

7. It is also contended that there is no evidence of the reasonable value of the services rendered on this $525 contract, but the contract itself was in evidence, and, in the absence of any evidence to the contrary, it is prima facie evidence of the reasonable value of the services. 13 Enc. Evidence, 584; Ibers v. O’Donnell, 25 Mo. App. 120; Lehigh v. Standard Ice Co., 149 Mich. 102 (112 N. W. 481).

The judgment of the circuit court is affirmed.

Affirmed.