213 P. 602 | Mont. | 1923
prepared tbe opinion for the court.
This action was brought by the plaintiff and respondent, J. A. Morrow, against appellant, the Hilbert-Thien Company, a corporation, and others, to foreclose a materialman’s lien claimed by plaintiff on certain buildings situated within the town of Ryegate, now within Golden Valley county, Montana. The claim of lien was filed on June 22, 1916, being in statutory form. It is set out in the lien claim that plaintiff “made a verbal contract with Oscar Dahl,” who was one of the defendants, “as the owner, to furnish the building material set out in the statement of account # ® * attached, ® ° the said material to be used in the erection and construction of garage and dwelling house for Oscar Dahl as the owner thereof,” and which buildings were situated on certain lots in the said town of Ryegate. The statement is also made that Oscar Dahl was the owner of the land. As a matter of fact, the title to the lots was never in Mr. Dahl, though his wife, one of the defendants, Anna K. Dahl, had contracted to purchase one of them from the owner. Subsequent to the filing of the lien claim appellant acquired title to the lots. The work on the garage and certain sheds' attached thereto was commenced in the early part of November, 1915, and probably completed in December of the same year. The work of enlarging the dwelling-house, which was originally a two-roomed house, purchased by Mr. Dahl and moved upon one of the lots, was begun a short time after the completion of the garage and sheds. The account with plaintiff was opened on November 2, 1915, by defendant Oscar Dahl. The plaintiff testified that at the time the account was opened he understood, that all the work was to be done before he would be entitled to payment for the materials. The account and testimony show that materials were supplied by plaintiff from time to time at frequent intervals up to and on February 25, 1916, and that the next items were furnished on April 3, 1916. The cause
There are seventeen specifications of error, none of which are meritorious.
Under section 9396, Eevised Codes of 1921, there being no showing of any proper grounds therefor, a new trial could not have been granted. There was therefore no error in overruling the motion.
Appellant strenuously contends that, by reason of the fact that the title to the land on which the buildings were erected was not in the purchaser of the building material, the plaintiff has no lien upon the buildings.
On the record before us we are of the opinion that it was unnecessary for plaintiff to show title to the lot in either of the defendants Dahl. That a person selling materials to be used in the erection or remodeling of a building has a lien on the building independent of the land on which the same may be situate is too well settled by the decisions of this court to require discussion. (See Stritzel-Spaberg Lumber Co. v. Edwards, 50 Mont. 49, 144 Pac. 772; Midland Coal & Lumber Co. v. Ferguson, 61 Mont. 402, 202 Pac. 389.) It is, then, immaterial whether the person to whom supplies are sold for such use has title to the land or not. The mere fact that one who has a lien on a building claims also a lien on land which he cannot subject thereto will not defeat his lien on the buildings situate on the land, if they can be identified.
In the view we take of the case, we cannot see how the trial court could have come to any other conclusion than 'that reached.
It is true that the ■ court made findings concerning the interest of defendant Oscar Dahl, in the lots on which the buildings were situated, and concerning the knowledge of the appealing defendant, the Hilbert-Thien Company, as to the transactions; and there may be some ground for argument that there is not evidence to support the findings on those points. However, the findings were immaterial, and the presence or
By the terms of section 9745, Revised Codes of 1921, an appeal from an order overruling a motion for a new trial is abolished.
We recommend, therefore, that the attempted appeal from the order overruling the motion for a new trial be dismissed, and that the judgment appealed from be affirmed.
For the reasons given in the foregoing opinion, the attempted appeal from the order overruling the motion for a new trial is dismissed, and the judgment appealed from is affirmed.
Affirmed.