26 S.D. 160 | S.D. | 1910
In deciding this cause the learned circuit judge before whom it was tried -stated his conclusions of law substantially as follows: That the plaintiff, the defendant Tucker, and the defendant Blanchard are each «entitled to a judgment against the defendant Flattie E. Lager for $649.95, $57.68, and $66.34, respectively, with interest, costs, and disbursements; that the same is a lien upon the land described in the complaint; that the lien of the mortgage on said land executed by the defendant Hattie E. Lager to the defendant building and loan association on Octo
It is disclosed by the abstract that Mr. C. N. Harris, as a witness for the plaintiff, -testified as follows: “I am the attorney for -the Hoihe Building & Loan Association, -one of the defendants, and I think that I prepared the first answer. But that is not the answer in the case at the present time; it is the first answer prepared.” Thereupon the plaintiff offered in evidence the original answer of the defendant association, which was received over the objection that it was “incompetent, irrelevant, .and immaterial.” It will be assumed that such answer contained this language, as stated in respondent’s additional abstract: “This defendant is informed and believes, and so alleges, the fact to be upon information and belief that one Louis Lager was acting as agent for the defendant Hattie E- Lager in the construction of said house.” If it did not, there is nothing to show wha-t it contained, as it was not made a part of the original record transmitted to -this court. If it did contain the alleged language, it clearly was “relevant” and “material,” as it contained an admission against the defendant association tending to prove a material fact, namely, that Louis, the husband of Hattie E. Lager, was his wife’s agent, authorized by her to purchase the material furnished by -the plaintiff and used in the construction of her. building. An objection to the evidence that it is “incompetent,” without stating in what its incompetency consists, is insufficient. I., B. & W. Ry. Co. v. Cook, 102 Ind. 133, 26 N. E. 203; Weik v. Pugh, 92 Ind. 382; Stanley v. Sutherland, 54 Ind. 339; State v. Eisenhour, 132 Mo. 140, 33 S. W. 785. Moreover, the ruling of the learned circuit court would not have been erroneous even if a proper objection had been interposed.
This court, in considering the admissibility of a superseded complaint, after referring to the California cases and one in Minnesota, used this language: “In disposing of the question here presented, we go only to the extent of holding that an original superseded complaint, signed and verified by an attorney, is inadmissible as evidence ( against the plaintiff, in support of an issue tendered by the answer to his amended complaint, unless it is first shown clearly that the recitals thereof, sought to be used as an admission, were inserted under his personal direction, or have since knowingly received his sanction and ratification. Applying to this case the rule by which a principal is bound by the admissions or declarations of his agent, the original complaint was properly excluded.” Corbett v. Clough, 8 S. D. 176, 65 N. W. 1074. In that case this court went far enough, perhaps too far; but it did
The contention that there was air entire failure of proof that Hattie E. Lager ever authorized her husband to represent her as her agent, or that she ever ratified his acts with reference to his dealings with the plaintiff, is not tenable. It was stipulated on the trial that Hattie E. Lager owned the land described in the complaint from a time prior to the making of all the contracts for mate-rial and labor involved in this action, and that -she continued to own the same until each -of the claims for liens mentioned in the judgment appealed from was filed with the clerk of courts. H. C. Behrens, an officer of the respondent corporation, was asked this question: “Do you know who Mr. Lager was-acting for at the time he got this material?” To which appellants objected as “incompetent and immaterial, and -that the witness has not shown himself
The contention that the judgment in favor of defendant Tucker was erroneous for the reason he was in default, not having served or filed an answer, is not supported by the record. While no answer on his behalf appears in either abstract, both are silent as to whether one was interposed. An appellate tribunal should never predicate error upon a fact which may or may not have existed. Every reasonable presumption should be indulged to sustain the action of the trial court. Moreover, as evidence'was introduced, without objection, to establish Tucker’s cause of action, it is now too late for appellants to assert the absence of a proper pleading. The defect, if it were shown to exist, could be cured, even in this court, by filing an answer to conform to the facts established by the evidence.
Appellants contend: “The court erred in rendering judgment in favor of E. A. Blanchard in this: That no evidence -was introduced on the part of F. A. Blanchard to sustain his case. The stipulation is the only statement in the record showing what rights, if any, F. A. Blanchard might have, and this stipulation only admits that he made a contract with Louis Lager, and upon this showing no judgment can be sustained foreclosing his lien upon this property.” This contention must be disregarded. It does not point out any particular in which the stipulation is deficient. Moreover, the only specifications of the particulars wherein the evidence is insufficient to justify the decision, so far as it relates to Blanchard’s cause of action, found in the bill of exceptions or statement of the case, are as follows: “(4) The undisputed evidence shows that F; A. Blanchard, one of the defendants, in making the contract with Louis Lager, dealt with and only knew him as principal and not otherwise. * * * (10') The undisputed evidence shows
The only remaining question is whether the trial court erred in concluding that the mechanic’s lien should attach to both the realty and the building erected thereon in preference to the interest of defendant Gannon and the lien of the association’s mortgage. The material provisions of -the statute in this respect are as follows: “All liens for labor done and things furnished claimed and filed under the provisions of this article shall have priority over and be preferred to all other liens and incumbrances which may be attached to or upon such building, erection or other improvement and to the land upon which the same is situated, or either of them, made subsequent to the commencement of the. building or other improvement.” “The lien- for the things aforesaid, or work, shall attach to the’ buildings, erections or improvements, for which they were furnished or done, in preference to any prior lien or incumbrance, or mortgage upon the land upon which the same is erected or put, ‘and any person enforcing such lien, may have such building, erection or other improvement, sold under execution, and the purchaser may remove the same within a reasonable time thereafter.” Rev. Code Civ. Prof. §§ 705, 707. As the lien claims were on file when Hattie E. Lager conveyed the premises to Williamson and when he conveyed to Gannon, it is clear -they should attach to both the land and the building in preference to the latter’s subsequently acquired title. It is equally clear that they should attach to the 'building in preference to the lien of the association’s mortgage. Laird-Norton Co. v. Herker, 6 S. D. 509, 62 N. W. 104. The mortgage was executed October 14 and recorded November 4, 1907. The building was commenced October 6, 1907. It is true the plaintiff did not begin furnishing material until after the mortgage was executed; but that is im
The judgment and order appealed from are affirmed.