First Nat. Bank of Bottineau v. Hilliboe

• Decision Date: 21 February 1908
• Citation: 114 N.W. 1085,17 N.D. 76
• Parties: FIRST NAT. BANK OF BOTTINEAU v. HILLIBOE et al.
• Court: North Dakota Supreme Court

17 N.D. 76

114 N.W. 1085

FIRST NAT. BANK OF BOTTINEAU

v.HILLIBOE et al.

Supreme Court of North Dakota.

Jan. 8, 1908.

Rehearing Denied Feb. 21, 1908.

Syllabus by the Court.

An objection to the sufficiency of the allegations of the complaint is too late when made for the first time in the Supreme Court, where the complaint would be amended as a matter of course if objection had been made before.

An objection to evidence as incompetent, irrelevant, and immaterial is too general to suggest the objection that the evidence is incompetent as relating to a transaction with a deceased person, whose executor and heirs at law are parties to the action.

The cashier of a national bank, which is a party to an action, is a competent witness to testify to the fact of the mailing of a notice to a deceased person, whose executor and heirs at law are parties to the action, as section 7253, Rev. Codes 1905, prohibits evidence of parties only in such cases.

The contractor of a building, pursuant to a contract with the owner of the building, is not a competent witness as to payments made on said contract, where the owner of the building has since died, and his executor and heirs at law are made parties defendant with said contractor in an action by the plaintiff to foreclose its lien as a subcontractor.

Payment of the full sum due on a contract by the owner of a building to the contractor after 90 days from the time the last materials were furnished, and before the lien of a subcontractor was filed, exempts the building and land from a lien filed after such payment was made, although the owner does not show that payment was altogether made after the 90 days had expired and before the lien was filed. The fact that some payments were made before the 90 days had expired did not prejudice the subcontractor, as the last payment made was more than sufficient to protect it if the lien had been filed in time.

Where a contractor and the executors and heirs at law of the deceased owner of a building, erected under a contract between said contractor and the owner, are parties defendant in an action to foreclose a subcontractor's lien, the evidence of the contractor as to when the building was completed is not objectionable as referring to a transaction with a party since deceased, under section 7253, Rev. Codes 1905.

Appeal from District Court, Bottineau County; E. T. Burke, Judge.

Action by the First National Bank of Bottineau against P. S. Hilliboe and others. Judgment for plaintiff, and defendants appeal. Reversed, and action dismissed.Noble, Blood & Adamson, for appellants. Weeks & Murphy, for respondent.

MORGAN, C. J.

Action to foreclose a lien for materials furnished for a building by the plaintiff as a subcontractor. The plaintiff recovered judgment in the district court. The heirs at law of Ertresvaag, deceased, who was the owner of the building, appeal to this court, and demand a review of the entire case, under section 7229, Rev. Codes 1905.

The appellants contend that the complaint fails to state a cause of action for the foreclosure of a mechanic's lien. Their contention on this point is that the complaint fails to allege that the plaintiff did give notice to Ertresvaag that it had furnished to the contractor the materials for the furnishing of which a lien is claimed prior to the filing of the lien and prior to the completion of the building. The complaint alleges that the notice was given on March 15, 1904, and that the lien was filed on March 10th. There was no demurrer to the complaint, and no objection was made to the introduction of evidence under the complaint prior to the taking of testimony, nor was this objection urged during the trial by an objection specifically based on the fact that the complaint showed that the lien was filed before any notice was given. We are of the opinion that this objection to the sufficiency of the allegations of the complaint comes too late when raised for the first time in the Supreme Court. The uncontradicted facts are that the lien was filed on March 11th and that the notice was sent by registered letter, as required by section 6237, Rev. Codes 1905, on March 10th. If objection had been made, and the attention of the court called to the variance between the allegations of the complaint and the evidence, an amendment of the complaint would have been proper and undoubtedly allowed. Appellants claim that this testimony was objected to. Nowhere was the ground of the objection specifically pointed out. The objection was that the testimony was incompetent, irrelevant, and immaterial. This objection was too general, and did not apprise the court or opposing counsel of the real ground of the objection. It is now generally held that objections in this form are not specific enough, and that error cannot be predicated upon rulings overruling them. This court has also held objections in that form not subject to assignment of error when overruled. Kolka v. Jones, 6 N. D. 461, 71 N. W. 558, 66 Am. St. Rep. 615.

Conceding, for the purposes of this appeal only, that the evidence was inadmissible under the allegations of the complaint, we are satisfied that objections thereto come too late when first presented on appeal. By not objecting in time, and specifically pointing out the objection, the trial court had no opportunity of ruling on the objections now raised. The right to object to the testimony, based on variance, was therefore waived. Russell v. Barron (Sup.) 97 N. Y. Supp. 1061;Reeves v. Howard, 118 Iowa, 121, 91 N. W. 896;Strow v. Allen et al. (Iowa) 98 N. W. 141;McCabe v. Des Noyers (S. D.) 108 N. W. 341;Calidonia Gold Mining Co. v. Noonan, 3 Dak. 189, 14 N. W. 426;Zion Church v. Parker, 114 Iowa, 1, 86 N. W. 60; Burgi v. Rudgers, 108 N. W. (S. D.) 253; Collins v. Denny Clay Co., 41 Wash. 136, 82 Pac. 1012. The owner of the building and lots died on April 4th, a few days after the lien was filed. There are many objections to testimony introduced by the plaintiff, based on the ground that it related to transactions with Ertresvaag, the owner of the building, then deceased. These objections relate to the evidence as to the time when the building was completed. Also that pertaining to the mailing of the notice by plaintiff that it had furnished materials for the construction of the building. Also the return receipt of the registered letter containing said notice, signed by E. Ertresvaag by Emil Johnsgaard. So far as the evidence as to the time when the building was completed, we are satisfied that it does not relate to a transaction with a deceased person within the meaning of that word as contained in subdivision 2 of section 7253, Rev. Codes 1905, which reads as follows: “(2) In civil actions or proceedings by or against executors, administrators, heirs at law or next of kin in which judgment may be rendered or order entered for or against them, neither party shall be allowed to testify against the other as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party. * * *” The reason of the rule laid down in said section is to protect the estates of decedents from false testimony which attributes to a deceased party statements or acts concerning which he cannot testify by reason of his death. A transaction, as used in this section, means a transaction in which the decedent took part and was a party to and participated in. 30 A. & E. Enc. Law, p. 1027, and cases cited.

When the building was completed was not a matter dependent upon any action or knowledge of the owner of the building. That fact did not rest upon any fact particularly within the knowledge of the owner, and depended in no way upon any act of his in connection with that of the contractor. The completion of the building was the act of the contractor alone, and testimony concerning the same does not relate to a transaction with the owner, and does not come within the prohibition of the statute. This evidence was not therefore objectionable, although given by the contractor who was a party defendant in the action. Parties to an action are not made incompetent to testify in actions in which executors, administrators, or heirs at law of deceased persons are also parties. The statute only renders their evidence incompetent when it relates to transactions with the decedent. The testimony relating to the giving of the notice by mailing that plaintiff...