15 Minn. 185 | Minn. | 1870
By the Qowrt The complaint sets out two causes of action; the first, that in consideration, that at his request, plaintiffs would forbear to file a lien for lumber and materials furnished to, and used by one Kate C. Howe, wife of L. S. Howe, in the erection of a dwelling house and improvements upon two-and-a-half acres of land within the limits of the city of Rochester, owned by her, but of which defendant held a conveyance, absolute in form, but in fact a mortgage, and to bring an action -to have such lien declared prior to defendant’s, and his conveyance declared a mortgage, subject to such lien; and would furnish said Howe certain lumber for fencing the lot on which said house stood, and would pay the sum of $12.60 as- afterwards specified, the defendant promised that he would pay the sum then due plaintiffs for such lumber and material, part of which is alleged to have been furnished by plaintiffs and part by the firms of Hodgins, Coleman & Co. and Hodgins, Robson & Co., whose successors and assignees in interest plaintiffs are alleged to be. — and avers, that in consideration of such request and promise plaintiff's furnished said fencing, paid said
The second cause of action is for $12.60 as money paid for defendant’s use, and at his request, on the Jth of January, 1868.
The answer alleges, and it is admitted, that the land in question was school land for which Mrs. Ilowe had held by assignment a certificate of sale, issued by the State to one P. Cavilier, entitling him or his assigns to a patent on payment of the purchase price as therein stipulated, and which had been assigned to the defendant by an instrument under seal, duly executed and acknowledged by her and her husband, and recorded, and which is the conveyance specified in the complaint, and the object of which was to secure to defendant the repayment of moneys advanced by him.
It also alleges that said premises are the homestead of Mrs. Howe, and her husband, and as such exempt from such alleged lien; that plaintiffs were not the material men, but the assignees of the said parties who arc alleged to have furnished the lumber, &c., and denies that plaintiffs had or could have.any such lien. . That any promise of defendant was without consideration, and not in writing; denies the making of the promises alleged, in the first count, and that plaintiffs forebore to file a lien, or bring such action, on account of any request or promise of defendant; admits his refusal to pay, and the payment of $100 by Mrs. Howe on account of said lumber, and as to each and every other allegation in said first count, denies any knowledge or information sufficient to form a belief.
As to the second couse of action, it admits the facts alleged.
Prom the case settled it appears that the issues arising on these pleadings, came on for trial by the court and a jury, at
The only record made at the time, of the action of the court, was the following entry by the clerk, in the court minutes : “ Defendant’s . counsel moved for a non-suit. Motion allowed. Ordered that proceedings be stayed for twenty days, and that plaintiffs have ten days to prepare a a case, and tlm defendant have ten days to propose amendments.”
The case was settled during the time so allowed, which expired November 2,1869. On the 8th day of said November, plaintiffs gave notice of appeal to this court, from the order and judgment made in said district court, at the Oct., 1869, term thereof, directing that the said action be dismissed, and plaintiffs non-suited therein ; and gave bond with two sure
No judgment had then been entered, nor is this bond such as is required to stay proceedings in the court below, on appeal taken from an order. Gen. Stat. ch. 86, see. 10. This, the first appeal taken in said case, is still pending.
On the 3d of December, 1869, the plaintiffs notified defendant’s attorney, that on the 9th of said month, they would cause “the judgment rendered in the said action by the said court at the last October term thereof, in said court, to be entered in said action, in the records of said court.”
On the 4th day of said month, the clerk entered judgment in said action, at the instance of defendant’s attorney, dated of that day, that said first cause of action be dismissed, and that defendant recover of plaintiff $15.95, his costs and disbursements, after deducting therefrom, the sum of $14.36, admitted to be due the plaintiff’s by defendant’s attorney, viz: $1.59.
On the 9th of said December, the clerk, at the instance of plaintiffs’ attorney, entered a judgment in said action as of October term, 1869, that the action be dismissed, and plaintiffs non-suited, and that defendant recover of plaintiff his costs and disbursements, taxed at $15.96. On the 20th of said December, the judge of the district court, on motion of plaintiffs, granted an order on defendant to show cause on the 21st day of December, 1869, why the judgment entered Dec. 4, 1869, should not be vacated, and, on the hearing, on said return ordered, that plaintiffs’ application be
The appellants contend that the decision of the court at the trial upon defendant’s motion was the judgment, within the meaning of the statute, authorizing the removal to this court by appeal of a judgment in a civil action in any of the district courts, Chap. 86, sec. 1;] and that an appeal lay therefrom immediately, as from a judgment, though not reduced to writing, or signed or entered: but this position is not tenable. The statute contemplates an appeal from a record. The judgment must be entered in the judgment book before it is complete — that is the formal and permanent entry of the judgment upon the record; from the date of the entry, the time within which an appeal can be taken begins to run. Gen Stat. ch. 86, sec. 3, 4, 5, 6; do. ch, 66, sec. 250. Williams vs. McGrade, 13 Minn., 46.
But if not the judgment, plaintiffs insist that it is at least an order for judgment of dismissal,” and'appealable; and being erroneous, must be reversed.
But we do not see how this case is distinguishable in this respect, from Lamb vs. McCanna, 14 Minn., 513. That case is in fact stronger than this, for the decision of the court, on the motion that the action be dismissed, was there put into a formal order of dismissal, and entered of record : in this case, both parties call upon us to go behind the case as settled, and examine the whole return ; and upon that, not to speak of the affidavits and statements of the parties, it is evident that no order of dismissal was ever drawn up or entered; nor does the enti’y in the court minutes necessarily import the making of such order, for it may well be held to refer only to the first cause of action, and the only one on trial. As before remarked, the court made an oral
The first appeal, tlien, is not well taken, and must be dismissed.
The second appeal, so far as it is an appeal from the order denying plaintiffs’ motion to vacate the judgment of Dec. 9, is also bad. If the order made at the trial were appealable, the security given not being effectual to stay proceedings, the district court was at liberty to proceed to enter judgment, and was certainly not obliged, if it had committed an error, to allow the error to be carried out, and perpetuated of record. It had full power over its records to make orders, enter judgment, and correct errors, and we think it evident that the ruling, as set out in the case, was the result of inadvertence, whereby the fact that there was a second cause of action, admitted by defendant, was overlooked by the district court. The judgment entered on the 4th of December, is no doubt agreeable to the true intent of the court. If the order were not appealable, of course there could be no doubt of its power to modify it, and enter such judgment as it saw fit.
The appeal from the judgment remains to be considered, and whether upon the case as settled there was error in any of the rulings or decisions of the district court at the trial.
The allegation in the answer that the plaintiffs were the assignees of saidpwties who furnished the lumber, admits the partnership of Hodgins, Robson & Co. The offer by plaintiffs of their articles of partnership was therefore superfluous, and tbeir rejection no ground of exception.
The only other reasons urged by respondent are, that if the evidence proved an agreement on plaintiffs’ part, to forbear to bring an action to enforce a lien, it was not a sufficient consideration to uphold defendant’s promise to pay, as a new and independent contract, because : Hirst, it was not in writing; Second, the plaintiffs had waived their lien by taking the note and mortgage before mentioned: Third, that plaintiffs had failed to prove any debt against Mrs. Howe.
There is nothing in the first objection, nor' do we think that the taking by Cowdrey in his own name, of the note and mortgage, the mortgage being no lien upon the land, and taken in ignorance of that fact, was, under the circumstances of the case, a waiver by plaintiffs of any statute lien they might have, and whether plaintiffs have proved a debt against Mrs. Howe, was a question for the jury, which it would have been error for the qourt to pass upon; and we cannot say thatin this case as settled, there was no evidence proper for the jury on this point. The case does not specify what agreements are, in the opinion of the court, shown by the evidence to have been proved;
The appellants claim, that they proved a promise by defendant to pay a demand held by them against Mrs. Howe, upon a consideration moving from them to him, in
The respondent, on the other hand, does not admit either that the plaintiffs had any lien, or that any such agreements were proved.
He seems to admit that if plaintiffs had such prior lien to his, and made a valid agreement to forbear to enforce it, and have lost it in consequence of their forbearance to enforce it, on the faith of his promise, though verbal only, to pay their demand, if they would so forbear, he would be liable, and we think he would be. Though the debt against Howe remained, the promise would be founded on a new consideration moving to him, of benefit to him, and harm to plaintiffs.
So as to the $12.60, printer’s and sheriff’s fees, on the execution of eastern creditors against L. S. Howe, the levy made under which, upon Mrs. Howe’s land, was withdrawn, according to Mr. Jones’ testimony, at respondent’s request, and upon condition that such costs were paid by him. It does not appear how either L. S. Howe or his wife, were liable for them. The debt would be due from the execution creditor to the printer and sheriff..
If the execution was withdrawn or plaintiffs paid those costs at defendant’s request, and on the faith of his promise that in that event he would pay their demand for lumber, and the payment of the costs was a condition of the withdrawal, such promise would not be within the statute. It would be, not a promise to pay the debt of another, but a new and independent contract between plaintiffs and him
Whether the plaintiffs agreed, on the faith of the alleged promise of defendant to forbear, and did forbear to file a lien on the land, and have thereby lost a right they then had, and whether defendant made the promise alleged, wore not for the court, but for the jury to settle, under proper instructions; and On these questions we think that the case discloses evidence proper for their consideration, and they should have been left to them, to find for the plaintiffs, if upon all the evidence that should be introduced, they should believe either that plaintiffs, having such lien, agreed to waive, and waived it at defendant’s request, and on the faith of his alleged promise, or that said $ 12.60 was paid by plaintiffs and said execution withdrawn at his request, and on the faith of the alleged promise made as above stated. As to the fencing, however, the effect of the promise alleged being to pay the debt of another, it would be going too far to say, that there is evidence tending to show that the leading object of defendant in making it, was to subserve or promote some interest or purpose of his own, and that therefore it is valid, though not in writing. Nelson vs. Boynton, 3 Met., 396.
The judgment appealed from is reversed, and a new trial ordered.
