Benbow v. The James John

• Decision Date: 27 February 1912
• Citation: 61 Or. 153,121 P. 899
• Parties: BENBOW v. THE JAMES JOHN et al.
• Court: Oregon Supreme Court

121 P. 899

61 Or. 153

BENBOW v. THE JAMES JOHN et al.

Supreme Court of Oregon

February 27, 1912

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

An action by Charles A. Benbow against the James John, a boat the St. John Transportation Company, and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action to enforce a mechanic's lien upon a boat--James John--owned by defendant Transportation Company. The case was before this court on a previous appeal and is reported in 56 Or. 554, 108 P. 634. The issues are fully stated in the former opinion and need no further statement except as to matters arising upon amendments to the pleadings since the case was remanded. After the former hearing, defendants amended their answer so as to eliminate an allegation therein that the contract upon which the lien was based was for the construction of a ferryboat. They also filed a plea in abatement setting up the former judgment of the lower court dismissing the cause, and discharging the American Surety Company of New York from further liability upon an undertaking given by them for the release of the boat from arrest, and alleging that no stay of execution was demanded and that the undertaking was given for such stay, but that the undertaking on appeal was given only to stay execution for costs, and that no order for the rearrest of the boat or reinstatement of the undertaking had ever been given; whereby it was claimed that the court had lost jurisdiction of the subject-matter. Later the American Surety Company intervened and objected to any finding or judgment against them upon their undertaking for substantially the same reasons. The action was tried, and the court found for plaintiff and gave judgment in his favor against defendant boat and the surety company. All the defendants appeal.

Geo. J Perkins and John K. Kollock (M.A. Zollinger, on the brief), for appellants.

W.C. Benbow (A.E. Clark, on the brief), for respondent.

McBRIDE J. (after stating the facts as above).

It is claimed that the complaint does not state facts sufficient to constitute a cause of action and does not show jurisdiction of the state court to hear this cause, because it appears from the complaint that the labor was performed by way of repairs upon a boat theretofore existing and navigating the waters of the Willamette river, and that therefore the lien was maritime in its nature and could not be enforced in the state court.

Conceding, without deciding, that defendants could raise the question, after having appeared and given an undertaking for the release of the boat, and after answering without any plea to the jurisdiction, we think the objection comes too late. The complaint is in the same condition now that it was at the last appeal, and every objection that could have been made to its form or substance, whether actually made or discussed, or not, is concluded by that decision. All questions which could have been raised upon the first appeal are res adjudicata. 3 Cyc. 398; Hanley v. Combs, 119 P. 334; Smith v. Seattle, 20 Wash. 613, 56 P. 389; Smyth v. Neff, 123 Ill. 310, 17 N.E. 702; Dilworth v. Kurtz, 139 Ill. 508, 29 N.E. 861. The circuit court was correct, therefore, in holding that the complaint was sufficient to justify the admission of evidence, tending to show that a practically new boat was constructed.

This being an action at law, the findings of the circuit court upon the facts take the place of the verdict of a jury, and are conclusive upon this court if there is any evidence to sustain them. Hallock v. Portland, 8 Or. 29; Courtney v. Bridal Veil Box Factory, 55 Or. 210, 105 P. 896.

The evidence of plaintiff tended to show that part of the hull of the boat was built at St. Johns; that it was then towed to Portland to the East Side Boiler Works, where plaintiff finished the hull and put in part of the machinery; that it was then moved north of the Morrison street bridge, and the remainder of the machinery was put in, also the cab and other woodwork; and that the boat was not named until after plaintiff had finished this work.

Even if there had been some sort of a boat in existence and use before plaintiff began his work, yet, if his labors went to the extent of destroying its identity, it amounted to the construction of a new boat. McMaster v. One Dredge (D.C.) 95 F. 832; The Victorian, 24 Or. 121, 32...