Cole v. Custer Co. Ag.

• Decision Date: 07 September 1892
• Citation: 3 S.D. 272,52 N.W. 1086
• Parties: COLE, Plaintiff and respondent, v. CUSTER COUNTY AGRICULTURAL, MINERAL & STOCK ASSOCIATION, Defendant and appellant.
• Court: South Dakota Supreme Court

3 S.D. 272

52 N.W. 1086

M. & S. Ass’n.,(1892)

COLE, Plaintiff and respondent,

v.

CUSTER COUNTY AGRICULTURAL, MINERAL & STOCK ASSOCIATION, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Custer County, SD Affirmed Chauncey L. Wood, Charles J. Buell, Rapid City, SD Attorneys for appellant. James W. Fowler, Alfred T. Feay and C. J. Patton Attorneys for respondent. Opinion filed Sept. 7, 1892

CORSON, J.

This was an action to establish and foreclose a lien for materials furnished under the mechanic’s lien law of this state. Judgment was rendered in favor of the plaintiff, and the defendant appeals. The errors assigned are as follows: “First. The court erred in rendering the judgment and decree herein, because the description of the premises upon which the alleged lien was claimed is so vague and indefinite that the pretended lien is void. Second. The court erred in rendering personal judgment against the defendant in this action, because in an action to foreclose a mechanic’s lien a personal judgment cannot be rendered. Third. The court erred in rendering the judgment and decree herein without testimony of any kind, and without having first made and entered an order overruling the defendant’s demurrer. Fourth. The court erred in rendering the judgment and decree herein, because the court did not first make and file its decision in writing. Fifth. The said judgment and decree is against law for all of the reasons aforesaid.

1. The description of the buildings for the construction of which the lumber was furnished, and of the property sought to be charged with the lien, is as follows: “That said materials were furnished for said association … for its use and benefit in the erection of an office, floral hall, grand stand, etc., located upon the premises hereinafter described; and affiant further makes oath and says that the said Custer County Agricultural, Mineral & Stock Association was at the time said contract was entered into and said materials furnished in possession of the said premises on contract, and was the owner of the same when said lien was filed, and that said buildings are located on a certain lot of land owned by said Custer County Agricultural, Mineral & Stock Association of Hermosa, Dak., more fully described as follows: Lying and being in the northeast corner of section 32, township 2 south, range 8 east, Black Hills meridian; and the said Cyrus Cole claims a lien upon said buildings and premises.” In the judgment the description is as follows: “That piece or parcel of land lying and being in the northeast corner of section 32, township 2 south, range 8 east, Black Hills meridian, and being known as the ‘Fair Association Grounds,’ one fourth mile east of Hermosa, Custer County, Dak.” These descriptions are, we think, sufficient to identify the property sought to be charged with the lien, and to pass the title of the defendant to the purchaser in case of a sale under the judgment. Such a description as will enable the sheriff to identify and deliver the possession of the property is sufficient. This, we think, could easily be done in this case. In the absence of evidence showing that the defendant had or owned more than one “Fair Association Grounds” in the northeast part of section 32, of township 2 south, range 8 east, there could be no uncertainty as to what property was intended. We have examined the authorities cited by the learned counsel for the appellant, as to descriptions of property held insufficient, but we do not think they control this case. In the cases cited there is nothing in the description to identify the property. In Munger v. Green, 20 Ind. 38, the description in the judgment held not sufficient was “one acre, more or less, lying north of, and adjoining the northwest corner of Lixby’s addition to the village of Van Buren, in the county of La Grange and state of Indiana;” and in the notice of lien was added that the land “was conveyed to said Green by one Erastus Bartle.” In Bosworth v. Farenholz, 3 Iowa 84, the description held insufficient was “forty feet of lot No. 2, in block No. 2, in Davenport.” In Lemly v. La Grange Iron & Steel Co., 65 Mo. 545, the description was held insufficient because it described two buildings situated on two different blocks, with a street separating them; and the court could not determine what material was used in the building in one block, as distinguished from the other. In Head v. James, 13 Wis. 641, the description held insufficient was “north and west part SE¼, sec. 4, T. 4, R. 12; acres, 50.” These cases sufficiently illustrate the class of descriptions held bad by the courts.

The case of Brown v. Gaslight, etc., Co., 16 Wis. 578, (decided by the supreme court of Wisconsin,) strongly supports the contention of the respondent in this case. In that case the number of the lots and block were given, but these were erroneously stated in the petition and complaint, and the plaintiff was allowed to amend. The court .held that the amendment was immaterial, as the complaint and petition would have been sufficient without such amendment. The court says: “In the petition for the lien, and in the complaint, the property was described as the several buildings know as the ‘Gas Works of the La Crosse City Gaslight & Coke Company.’ … If a deed had been made conveying this property as the several buildings known as the ‘Gas Works of the La Crosse City Gaslight & Coke Company,’ can there be a doubt that the property was described with sufficient certainty? Probably not. The description would be deemed adequate and sufficient to pass the title of the real estate upon which the gas works were situated, whatever it might be.” The case of Tibbetts v. Moore, 23 Cal. 208, is also in point. In that case the court says:

“The first point urged is that the notice of lien filed by the plaintiff, Tibbetts, does not correctly or sufficiently describe the property sought to be charged with the lien. It is described as a ‘quartz mill being at or near the town of Scottsville, in Amadoz county, known as “Moore’s New Quartz Mill.”’ There was no evidence that there was any other quartz mill at that place so designated as to render it uncertain which was intended. The description we deem sufficient to identify the property and uphold the lien.” It will be observed that in the latter cases there were other means given of identifying the property than the mere local description of the property. In the one case it was the city gas company’s property and works, and in the other it was a quartz mill known by a particular name, situated at or near a certain designated town. In the case at bar it appears from the account filed that the lumber was furnished for and used in the construction of an office, floral hall, grand stand, etc., on grounds owned by the Custer County Agricultural, Mineral & Stock Association of Hermosa, and added to this is the section, township, range, etc., and the particular part of the section. In the judgment the property is still more definitely defined by giving the name of the grounds, and their distance and direction from Hermosa. McCoy v. Quick, 30 Wis. 525; McClintock v. Rush, 63 Pa. St. 203; Strawn v. Cogswell, 28 Ill. 457; Patrick v. Smith, 120 Mass. 510; Caldwell v. Asbury, 29 Ind. 451; Odd Fellows’ Hall v. Masser, 24 Pa. St. 507; Parker v. Bell, 7 Gray, 429.

But it is contended by counsel for appellant that the court was not authorized to add to the description in the judgment the words, “and being known as the ‘Fair Association Grounds’ one fourth mile east of Hermosa, Custer county, Dakota,” as there was no evidence given on the trial to warrant the court in making this addition to, the description. The learned counsel, in stating there was no evidence given in the case, assumes what does not appear in the abstract. It is true the record does not state that the court heard evidence, but the presumption is, in the absence of anything to the contrary in the record, that evidence was given and received by the court upon this subject. Kent v. Dakota F. & M. Ins. Co.,(1891). In that case this court said: “When the record is silent as to any fact necessary to support the judgment, the court will presume its existence, in the absence of evidence in the record showing its nonexistence. It is only when the record affirmatively shows error that this court will reverse the judgment.” And the statement of the law by the supreme court of California in Caruthers v. Hensley, 27 Pac. 411, was approved in that case, and is applicable to the case at bar. That court said: “If any matters could have been presented to the court below which would have authorized the entry of this judgment, it will be presumed on this appeal in support of the judgment that such matters were so presented and that the judgment was entered in accordance therewith.” If evidence, therefore, was necessary to authorize the court to make the description ‘of the property in the judgment appealed from more definite and certain than in the account filed, this court will presume that the court below had before it the proper evidence.

2. The next error assigned is that the court erred in rendering a personal judgment against the defendant. The counsel for the appellant contend that, as there was no prayer for a personal judgment in the complaint the court was not authorized to enter such a judgment in a case where the defendant had made no answer, even if such a judgment could be entered in a proper case for the foreclosure of a mechanic’s lien. Comp. Laws, § 5097. It is true the statement of the amount due is in the form of a personal judgment, but it...