167 N.W. 330 | N.D. | 1918
Lead Opinion
This appeal is one taken from the judgment rendered in the action.
The material facts are briefly as follows: About September 1, 1912, the plaintiff was engaged in the lumber business at Regent, Hettinger county, North Dakota. The defendant was the owner of the west half of the northeast quarter and the southeast quarter of the northeast quarter of section 28, township 135, range 96, in Hettinger county, North Dakota. On or about September 1st, plaintiff and defendant entered
The complaint was in the ordinary and usual form for the foreclosure of a mechanic’s lien. The defendant interposed a general denial. It was proved upon the trial of the case that the defendant did not use the material in building the fence provided for by the agreement, nor for the improvement of the premises aforesaid. The plaintiff did not consent to, and had no knowledge of, the diversion of such material. The plaintiff sold and furnished the defendant the material, not relying on the personal credit of the defendant, but relying upon the credit of the real estate. The material which was sold the defendant was used to build a fence upon a tract of land, not belonging to the defendant, but belonging to the defendant’s Avife,
That part of the judgment which is appealed from is as follows: “It is further ordered that, certain' mechanic’s lien filed and claimed by the plaintiff against the defendant and the folloAving real estate, to Avit: Northeast quarter of section 28, toAvnship 135, north of range 96, be, and the same hereby is, declared to be null and void, and of no force and effect, and that the same be canceled of record.”
The appellant makes five assignments of error, all of which may be considered together. They are as follows: The court erred in its second conclusion of law. The court erred in concluding as a matter of law that the mechanic’s lien is null and void. The court erred in holding and adjudging the mechanic’s lien as null and void. The court erred in ordering and adjudging that the mechanic’s lien be canceled of record. The court erred in awarding the defendant any relief whatever.
The defendant claims that part of the judgment appealed from
Section 6814, Comp Laws 1913, describes what persons are entitled to a mechanic’s lien, and for what purposes. The section is too long to set out at length, and suffice it to say that such section in substance provides that any person who shall furnish any labor upon, or furnish any materials, machinery, or fixtures for the construction or repair of any work of internal, or for the erection, alteration, or repair of any building or other structure upon lands or in making any other improvements thereon, including fences, etc., upon compliance with the requirements of law, shall have for his labor done or materials, fixtures, or machinery furnished a lien upon such building, erection, or improvement, and upon the land belonging to such owner on which the same is situated, or to improve which said work was done or the thing furnished, to secure the payment for such labor, machinery, material, or fixtures, etc. The section under consideration contains certain requirements with which the lienor must comply in order to procure a mechanic’s lien. The lien- or is required to keep an itemized account of the material or labor separate and apart from all other items of account against the purchaser. He must make a written demand in accordance with law for. the payment of such account, prior to. the filing of the lien. There are several other provisions of the section under consideration which have no bearing on this case.
The respondent claims the appellant not having brought up the.testimony in the case to this court, and the appellant depending entirely upon the face of the record for reversal, that if the findings of fact do not show the plaintiff is not entitled to a foreclosure of the lien, his appeal must fail.
Adverting to respondent’s first contention, that the findings of fact fail to show that the appellant filed with the clerk a verified account as required by statute, we are of the opinion that such contention is without substantial merit. We are of the opinion that the findings of fact made by the court show the filing of the mechanic’s lien. The court’s finding of fact upon this is as follows: “That within ninety days after
The second contention of the respondent is that the material not being used for an improvement on the premises for which it was purchased to be used, there can be no lien upon such premises, that is, upon the land where such fence was to have been constructed. We cannot agree with this contention of the respondent, and are of the opinion that, notwithstanding the fact that the material purchased was not used upon the premises where it was agreed at the time of the purchase of' such material it should be used, nevertheless the land upon which such material was purchased to be used is subject to’ a lien for the purchase-price of such material, whether the same is used thereon or not.
This language contemplates not only a lien upon the building, erection, or improvement, but in addition thereto a lien upon the land where such improvement is situated, or the land to improve which the work was done, or the material furnished. The word “and” in the language above quoted is not used in an explanatory sense, but means and expresses the relation of addition. It is used as a co-ordinate conjunction, and signifies that, the person claiming the lien shall have a lien upon the building, erection, or improvement, and in addition to a lien upon them he also has a further or additional lien upon the land upon which the improvement is situated, or to improve which said labor was done or material furnished. And in this case not only has the plaintiff who claims the lien a lawful right to claim it against the building or improvement, but in addition thereto and separate and apart therefrom, there is the additional right existing to claim it against the land. Words & Phrases contains several cases illustrating the use of the word “’and,” among which is the case of LaSalle v. Kostka, 190 Ill. 130, 60 N. E. 72. Another case found in Words & Phrases is Tipton v. People, 156 Ill. 241, 40 N. E. 838. The rule laid down in such case is that the word “and” commonly means “in addition to.” So, in the case at bar, the word “and” in the section we are considering means that, in addition to the lien upon the building, one who complies with the law in reference to filing a lien for material furnished for such buildings, or which was furnished to improve a certain tract of land, in addition to a right to a lien upon the building, has a right to a lien upon the land, for which the material was furnished to improve, or which was improved by the material furnished, and this right to a lien upon the land is a complete right in itself and may exist whether the material was actually used upon the land it was agreed to be used, or used upon other land than that agreed upon at the time of the purchase thereof, it being made to appear that the material was purchased, agreed to be used, and was
The point at issue in this case was directly presented and decided in the case of State Loan Co. v. Whiteearth Coal Min. Brick & Tile Co. 34 N. D. 101, 157 N. W. 834. That case and the authority therein cited amply sustain our position in this case. The question is no longer an open one in this state.
By reason of what we have heretofore said, we hold the plaintiff is-entitled--to a lien upon the northeast quarter of section 28, township-135, range 96, to improve which the material was furnished, and that it was reversible error in the court to adjudge plaintiff’s mechanic’s, lien null and void, and order its cancelation and satisfaction of record. However, as there is no dispute but what the plaintiff furnished the defendant the material to the value as claimed, and filed a mechanic’s lien against the land of the plaintiff to secure the value of such material furnished, and all- the legal questions being disposed of in this case, it is not necessary to grant a new trial. To do so could only result in a waste of time and the adding of more expense. The plaintiff was clearly entitled to his lien. Hence, we are of the opinion that that part of the judgment appealed from should be modified.
The judgment appealed from is modified, and it is held by this court that the mechanic’s lien made and filed by the plaintiff and claimed by him to be a mechanic’s lien is in fact a mechanic’s lien, and plaintiff is entitled to foreclose the same. Costs to be taxed in favor of appellant,
Rehearing
The former opinion decided all the questions presented and argued by the respective counsel. In a petition for rehearing, respondent attempts to raise two new questions. He contends: 1. That the appeal should be dismissed because plaintiff appealed from a part of the judgment; and (2) that the findings of fact fail to show that, prior to the commencement of the action, ten days’ written notice of plaintiff’s intention to foreclose the mechanic’s lien was given to the record owner of the real property as required by § 6825, Comp. Laws 1913.
It is proper to state at the outset that counsel ought not to present their lawsuits piecemeal, as respondent’s counsel has attempted tó do in this case. The propositions now presented clearly should have been raised before the former decision was handed down.: Not only so, but the motion to dismiss the appeal should have been made as soon as possible and before the submission of the ease on its merits. 4 C. J. 594 et seq.
We are agreed, however, that there is no merit in either of the questions now presented.
Respondent asserts that there can be no appeal from a part of a judgment, and cites Prescott v. Brooks, 11 N. D. 93, 90 N. W. 129, and Hoellinger v. Hoellinger, 38 N. D. 636, 166 N. W. 519.
The cases cited are not in point. In those cases the appellant appealed from, and sought to obtain a trial de novo in the supreme court of, a part of a judgment. The question involved in those cases was not whether a party may appeal from a part of a judgment, but whether a party may appeal from a part of a judgment and obtain a trial de novo in the supreme court of a part of the case.
In the case at bar the evidence has not been transmitted to this court. The appellant has not asked for a trial anew of the case or of any ques-ton of fact therein. Appellant concedes that the findings are correct, and merely challenges the conclusions of law drawn by the trial court therefrom.
That in some eases an appeal may be taken from a part of a judgment is expressly recognized by § 7821, Comp. Laws 1913.
So far as the second point is concerned, respondent’s contention is •equally untenable. The trial court found that the material was fur
Rehearing denied.
