5 N.M. 435 | N.M. | 1890
Lead Opinion
This is a petition, filed in chancery, to* foreclose four mechanics’ liens J upon a certain frame building situated on the southeast quarter of section 3, in township 18 south, of range 14 west, of principal meridian of New Mexico, near the boundary line of the town site of the town of Silver City, in Grant county, New Mexico, and commonly known as ‘‘New-comb’s Mill,” for work and labor performed on said-mill building by the defendants in error, George A. White ánd others. To this petition the plaintiffs in error filed a demurrer to so much of said petition as attempted to set up a lien and enforce the same in favor of one of the original complainants, namely,'Charles C. Harris. Upon the demurrer as to White there was-no action of the court below. Piaintiffs in error then filed their answer to said petition, denying the material allegations of the same. The defendants in error then filed a general replication to said answer; and thereupon the cause was referred to A. H. Harlee, as special master in chancery, to take the proofs and report the equities of the cause to the court. The master proceeded to take the proofs, and reported to the court that the defendant in error Milton Barnes was entitled to the sum of $115, with interest at six per centum per annum from the second day of January, 1886; John Hastio gs was entitled to the sum of $532, with interest from the same date; and that the said defendants in error were entitled to a lien on the property described in the original petition. To this report of the master, the plaintiffs in error filed objections and exceptions, which were overruled by the court below, and the master’s report confirmed. The plaintiffs in error appeal to this court.
The plaintiffs in error assign four errors, the first of which' is that the property is not sufficiently described in the bill of complaint, or notice of lien attached thereto. We do not think this objection well taken, in point of fact. The' description of the property which is set forth in the foregoing statement of facts shows the property to have been fully and minutely described; and, as counsel for the appellants stated in their argument of the cause that they' did not insist upon this point, we need not consider it further.
“And now comes the complainant George A. White, and .excepts and objects to that portion of the report of the special master in the above cause wherein the said master fails to find in favor of said complainant in his report of the amount of his said claim, and also of the lien thereof, who prays the master to allow the same, and sustain these exceptions.
“Asheneelter and Bantz,
“Solicitors for Plaintiff.”
The following statute is relied upon to support this exception: “The plaintiff, in any suit pending in the district court, may, at any time in the vacation of said court, file in the clerk’s office of said court a written dismissal of his suit; and said cause from that date shall be considered as dismissed at the cost of said plaintiff, and judgment shall be entered accordingly at the ensuing term of the district court.” Compiled Laws, New Mexico, section 1857. This section applies only to common law causes. In a proceeding, where a complainant has brought in other parties, whose equitable rights and interests have become involved in the cause, it becomes a question for the court to determine, whether he will be allowed to dismiss his case, and, if so, on what terms. Even if the statute applied to equity causes, as the record in this cause shows this party in the active prosecution of his case to the end, the presumption necessarily follows that he -waived his application to dismiss. From the record before us, it appears that there were no exceptions taken to any of the rulings of the court below. In such a state of the record, it must be apparent that there is no question before this court for review. The judgment of the court below is affirmed, with costs.
Rehearing
ON A MOTION BOB A BEHEABING.
The appellant in this cause files a motion for a rehearing, upon the ground that this court gave too much weight to the findings of the master on issues of fact, in saying such conclusions would be presumed by this court to be correct. We did not state in the opinion, or intend to be understood, that we would not look into all the evidence to ascertain if the equities as set forth in the bill have been sustained. But, in questions of fact, to be determined from conflicting testimony, the master, who'saw the witnesses,— observed their manner; is better able to determine the weight their testimony is entitled to; he being in the better position of applying intelligently the aphorism of the Roman tribunal, that “witnesses should be weighed, not counted.” In support of the proposition, we referred to the case of Blanvelt v. Woodworth, 31 N. Y. 285. It is objected that it was not a chancery case. It was a suit to foreclose a mechanic’s lien. It was on the equity side of the court. It was referred to a referee or master, to take proofs and make findings. One question was whether the contract price of the work in question had been paid, and the court in that case said: “As we have no authority to disregard the findings, they are conclusive against the claim that the defendant has paid the debt.” The same rule has always been recognized and applied in this territory. In Huntington v. Moore et al., 1 N. M. 503, the court said: “This report is based upon the finding of the facts before him, and this court will not review the report of the master as to his finding of the facts only for error of law appearing in the report.” We think this court, ought not to reverse upon a mere difference of opinion as to the weight and effect of conflicting testimony. To warrant a reversal, it must be clear that the lower court committed an error, and that a wrong has been done to the appellant. We can not say as to either point that the court below clearly committed an error, or that such a proposition is sustained by a preponderance of the evidence.
