Bitter v. Mouat Lumber & Investment Co.

• Decision Date: 08 November 1897
• Court: Colorado Court of Appeals
• Parties: BITTER v. MOUAT LUMBER & INVESTMENT CO. et al. [1]

51 P. 519

10 Colo.App. 307

BITTER v. MOUAT LUMBER & INVESTMENT CO. et al. ^[1]

Court of Appeals of Colorado

November 8, 1897

Error to Arapahoe county court.

Action to enforce a mechanic's lien by the Mouat Lumber &amp Investment Company against Louisa M. Bitter and others. A decree for plaintiff was entered, and the defendant Louisa M Bitter brings error. Affirmed.

Henry B. O'Reilly, for plaintiff in error.

Doud & Fowler, for defendant in error.

WILSON J.

This was an action to enforce a mechanic's lien. There being no bill of exceptions, we are restricted in our examination of the case to the record proper. For this reason we can ascertain such facts only as are contained in the undisputed allegations of the pleadings. The history of the case presents some very unusual and irregular features. It is undisputed that the Mouat Lumber & Investment Company, which was plaintiff in the suit, furnished material for the erection of a dwelling house upon a certain lot of ground situate in Arlington Park addition, in Arapahoe county, Colo., and that it was furnished at the instance of defendant John J. Bitter, whom plaintiff at the time believed to be the contractor for the erection of said building; that on July 5, 1893, plaintiff made and filed in the proper office a statement claiming a lien on the real estate and building for the amount of its bill for material so furnished. In this statement it was alleged that the owner of the property was defendant Frederick Smithlin, and defendant John J. Bitter was named as the contractor. The lien was claimed as a subcontractor. January 4, plaintiff instituted suit to enforce its lien, making as parties defendant John J Bitter, Mrs. J.J. Bitter, Frederick Smithlin, E.E. Byron, John A. Thompson, N.P. Helberg, Nels Johnson, and Olaf Johnson. Mrs. J.J. Bitter was named as a defendant, for the reason, as alleged by the complaint, and nowhere denied, that at the time when the lien statement was filed the record title to the lot was in defendant Smithlin, but that in reality he was not, and Mrs. Bitter was, the owner, the lot having been conveyed to Smithlin by her as security for a loan, which, having been paid, the property had been reconveyed by him to Mrs. Bitter before the institution of the suit. Byron was made a defendant because it was alleged that he held a deed of trust upon the property. Defendants Helberg and the two Johnsons were made parties because it was alleged upon information and belief that they were also lien claimants. No reference is made to John A. Thompson in the body of the complaint, and we are therefore not advised as to why he was made a party. The prayer of the complaint was for a personal judgment against John J. Bitter, and that the plaintiff be decreed to have a lien upon the real estate and the house thereon situate; or, in the event that the trust deed of Byron should be found to be a prior lien, that then plaintiff's lien be held to be prior to the trust deed upon the dwelling house, and that it be sold to satisfy the lien, and the purchaser should have an order to remove the improvements so purchased by him. Service of process seems to have been had upon the two Bitters and upon Helberg only. On February 19th following, J.J. Bitter appeared, and filed a demurrer to the complaint. On June 16th following, this demurrer was withdrawn, and leave given this defendant to answer. On November 15th following, defendant J.J. Bitter having failed to answer, judgment was rendered against him for the amount of the plaintiff's claim. This completes the history of the case so far as J.J. Bitter is concerned, he not having subsequently appeared. On February 19, 1894,--the same day on which J.J. Bitter filed his demurrer to the complaint,--Mrs. J.J. Bitter filed an answer. In this she denied that she or defendant Smithlin ever at any time entered into a contract with defendant J.J. Bitter for the erection of the building in question, and that she or Smithlin owed J.J. Bitter any sum upon such or any contract. She also denied that plaintiff's lien was prior in point of time to defendant Byron's trust deed, and alleged that she was still indebted to Byron in the sum of about $2,000 on the loan secured by the trust deed. On February 7, 1894, defendant Helberg filed a cross complaint, in which he alleged that he, as the assignee of Thomas D. Hickey and W. Homer Childers claimed a lien on the house and lot whereon it was situate for the sum due them under contract with J.J. Bitter as contractor for work and materials furnished. On January 30, 1895, W.W. Dale, as trustee in the Byron deed of trust, entered his appearance. On February 7, 1895, all parties to the suit who had appeared being present by their counsel, the trial of the cause was commenced, and, after a partial hearing of the evidence, the "further trial" was continued to the next day. On the following day, on the motion of W.W. Dale, it was ordered that the record be amended to read that he entered his appearance for himself, and also for E.E. Byron, the cestui que trust. On the same day, it was ordered by the court, upon motion of plaintiff, that the summons in the cause be filed nunc pro tunc as of February 7, 1894. The record, as before us, discloses no proceedings as to the further trial of the cause on that day. The next entry in the record is the filing of an amended complaint by plaintiff on February 15, 1895. In this complaint, it was stated that the correct name of Mrs. Bitter was Louisa M. Bitter, and it was alleged that in reality Mrs. Bitter was not only the owner, but that she herself caused said building to be erected; that her husband, J.J. Bitter, was in truth and in fact acting as her agent in the purchase of the material from plaintiff; that he did not disclose his agency to plaintiff at the time of said purchase, and that plaintiff did not have knowledge of such fact until during the trial of the cause on the 8th day of February, 1895, preceding. In other respects the amended complaint was substantially the same as the original one in its averments. The prayer of the complaint was the same as in the original one, except that judgment was also asked against Mrs. Bitter. On May 2, 1895, at a term of the court succeeding that at which the amended complaint was filed, and during which the trial of February 7th had commenced, the record recites that, "this cause having heretofore come on to be heard upon the amended complaint of the plaintiff, the answer of the defendants, and the cross complaint of N.P. Helberg," etc., and that "upon the trial, the plaintiff being represented by Doud & Fowler, its attorneys, and the defendants John J. Bitter and Louisa M.

Bitter being represented by their attorney H.B. O'Reilly, *** and, the court having heard the evidence and the arguments of counsel, and being fully advised in the premises," a final decree was rendered by which plaintiff was adjudged to have a prior lien upon the building and improvements; and the same were ordered sold, it being found that the Byron deed of trust was a first lien upon the lot. It was further adjudged in this decree that the judgment theretofore rendered against J.J. Bitter be set aside, and held for naught. On June 1st following, a motion on behalf of Mrs. Bitter for a new trial was denied. On August 26th following, and at a term of court succeeding that in which judgment was rendered Mrs. Bitter filed a motion to vacate the decree. On November 9th, at a succeeding term, upon hearing, this motion was also denied. Mrs. Bitter thereupon brought the cause to this court upon writ of error. No other defendant complains.

There are numerous assignments of error, but this court is precluded from the consideration of many of them because no bill of exceptions is presented, and for the further reason that the certificate of the clerk attached to the transcript of record which is brought here does not show it to be a complete transcript. The certificate is to the effect that the transcript is a true, perfect, and complete copy only of certain pleadings, motions, and record entries, being those designated in the praecipe therefor by plaintiff in error. If, from a failure to present a full record or a bill of exceptions, this court is in any instance required to resort to presumptions, it will in all cases indulge in that which sustains the proceedings of the trial court. This rule is elementary, and is universally sustained. Elliott, App.Proc 709, 710; Seed Co. v. Carlton, 2 Colo.App. 159, 29 P. 1044; Sears v. Andrews, 1 Colo. 88; Bank v. Elwood, 16 Colo. 247, 27 P. 705. Coming within this rule is the objection that no order was made authorizing the amended complaint to be filed, or allowing or requiring plaintiff in error to plead thereto. In the absence of a complete record, we cannot presume other than that the amended complaint was filed with the permission of the court in apt time, and upon proper application, and that plaintiff in error had the opportunity to plead thereto if she had so...