Climax Lumber Co. v. Bay City Mach. Wks.

50 So. 935 | Ala. | 1909

McCLELLAN, J.

Bill by appellee to enforce mechanic and materialman’s lien. There are two assignments of error only. They are: “First. The court below erred in the rendition of its final decree.” “Second. The court below erred in not sustaining the objections made to the depositions of the various witnesses shown in the record at pages 22 to 73, and at pages 81 to 83.”

Two reasons forbid the consideration of the matters attempted to be suggested for review by the second assignment. In the first place, in chancery practice objections to questions propounded in an examination on interrogatories do not, alone, invoke rulings by the chancellor. It is the office of exceptions to so effect that purpose. — Binford v. Dement, 72 Ala. 491. That course does not appear to have been observed by appellant in the court below. In the second place, the assignment itself is entirely too general. Its extreme generality is indicated by the volume of paging noted in it. — Williams v. Coosa Co., 138 Ala. 673, 33 South. 1015. The review, then, is limited to the propriety of the decree on the evidence presented by the parties and its freedom from prejudicial error in enforcing features.

The evidence is voluminous, and a discussion of it will not be attempted, inasmuch as a full treatment is impracticable. A careful consideration of all the evidence does not convince that the chancellor erred in any of the findings essential to the ascertainment and enforcement of the lien asserted by complainant. There was abundant evidence to justify the conclusion that the materials furnished and mechanical work done were so afforded with the letter of 'the mechanic and materialman statutes. — Code 1907, § 4754 et seq.. Our conclusion, as stated, does not omit consideration of the fact that the evidence was not in harmony. Notwithstanding the conflicts and adverse inferences, the decree, in this particular, cannot be pronounced erroneous.

The only objection urged in brief to the correctness of the decree is that the entire property was adjudged subject to the lien, and this when a mortgage on the property condemned was outstanding at the time the lien in question was created. Where a prior mortgage is on the property at the time the lien is created, Wimberly v. Mayberry, 94 Ala. 240, 10 South. 157, 14 L. R. A. 305, rendered previous to readoption of the statute involved in the Codes of 1896 and 1907, announces the law applicable to the relative rights and authorities of the lienor and mortgagee' and directs the practice in such cases. A reiteration of the holding in Wimberly v. Mayberry is unnecessary.

The chancellor here ascertained, and the decree so recites, that the increased value of the property as the result of the materials furnished and the work done by complainant exceeded the amount due complainant. That being true, it is obvious that, under the cited authority, the lien was prior in right to that extent, to the encumbrance of the mortgage. .

There is no error assigned and urged here. The decree must be affirmed.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.