Buckingham v. Flummerfelt

• Citation: 106 N.W. 403,15 N.D. 112
• Decision Date: 30 January 1906
• Court: United States State Supreme Court of North Dakota

106 N.W. 403

15 N.D. 112

GEORGE W. BUCKINGHAM v. WILLIAM FLUMMERFELT ET AL. AND W. J. EDWARDS

Supreme Court of North Dakota

January 30, 1906

Appeal from District Court, Cavalier county; Kneeshaw, J.

Action by George W. Buckingham against William Flummerfelt and others. Judgment for plaintiff, and defendant W. J. Edwards appeals.

Affirmed.

G. F Wyvell, for appellant.

Bosard & Bosard, Joseph Cleary and Gordon & Wheeler, for respondents.

OPINION

ENGERUD, J.

This is an action to foreclose a mechanic's lien. There were apparently several other liens besides that of the plaintiff, and these respective lienholders were made parties defendant. The appellant is one of these defendant lienholders, and in his answer sets up a mechanic's lien in his favor, and demands that his lien be taken into account and paid out of the proceeds of the sale of the land. A trial was had to the court which resulted in a judgment of foreclosure and directing the proceeds to be distributed amongst the parties interested, as set forth in the decree. Defendant was held to have a lien in the sum of $ 432 and interest, and entitled to share in the proceeds of the sale to that extent. Defendant appealed from the judgment. He does not demand a retrial of all the issues but in the statement specifies the following question as the only one for review "What is the reasonable value of the services rendered by defendant Edwards in controversy herein?" Only so much of the evidence as is pertinent to that question is embodied in the statement and abstract.

Defendant's lien is claimed for the value of his services as an architect. The claim consists of several items: $ 220 for preparation of plans and specifications for a proposed building on the land in question, which were abandoned after the excavation for the building had been commenced; $ 495 for a second set of plans and specifications which were used; $ 150 for superintending the construction of the building; $ 5 for drawing a contract between the owners and builders; $ 10 for making a change in the plans; $ 20 for making bills of materials and checking same; $ 25 for surveying and marking the building site and making certain measurements. The claims aggregate $ 925 and $ 162.50 had been paid thereon, leaving a balance of $ 762.50 for which the lien was claimed. The court found the work of preparing the first set of plans and specifications to be $ 75. The work of preparing the second set of plans and superintending the construction was held to be worth $ 495. All the remaining services were valued at the aggregate sum of $ 25. After crediting the payment there was a balance of $ 432.50, for which sum the trial court held appellant had a lien. The appellant claims this reduction of his demand was unwarranted by the evidence and as indicated by the specification of the question for review, insists that all other questions of law and fact should be left undisturbed, but the amount of the lien awarded to him should be corrected. It is apparent at once that the appellant was not rightfully entitled to any lien except for the superintendence of construction, and possibly for the second set of plans and specifications. None of the other items, even by the most liberal construction, could be held to be "labor upon any building or structure." As to whether the second set of plans and specifications would come within that category is open to question, and the authorities thereon are conflicting. While the statute relating to this kind of appeal permits the appellant to specify a single question of fact for review, and declares that "all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court" (section 5630, Rev. Codes 1899), the statute does not require this court to ignore errors of law apparent on the record, or to accept the decision of the trial court on questions of law as conclusive. This feature of section 5630, permitting the party, who is dissatisfied with the judgment to obtain a retrial of the case on the merits partly on the evidence and partly on the findings, is capable of being used to the great disadvantage of the party not appealing. ...