First Nat. Bank of Bottineay, a Corp. v. Warner

• Decision Date: 08 January 1908
• Citation: 114 N.W. 1085,17 N.D. 76
• Court: North Dakota Supreme Court

114 N.W. 1085

17 N.D. 76

THE FIRST NATIONAL BANK OF BOTTINEAU, A CORPORATION, v. N. J. WARNER, P. S. HILLIBOE, AS EXECUTOR OF THE ESTATE OF E. ERTRESVAAG, DECEASED, ADOLPH D. ERTRESVAAG, INGOLPH P. ERTRESVAAG, CARL N. ERTRESVAAG, EDWIN N. ERTRESVAAG, HEIRS AT LAW OF E. ERTRESVAAG, DECEASED, AND V. B. NOBLE, AS GUARDIAN OF THE MINOR HEIRS OF E. ERTRESVAAG, DECEASED, AND ALL OTHER PERSONS UNKNOWN CLAIMING ANY ESTATE OR INTEREST IN, OR LIEN OR INCUMBRANCE UPON THE PROPERTY DESCRIBED IN THE COMPLAINT, AND THEIR UNKNOWN HEIRS

Supreme Court of North Dakota

January 8, 1908

Rehearing denied Feb. 21, 1908.

Appeal from District Court, Bottineau county; Burke, J.

Action by the First National Bank of Bottineau against P. S Hilliboe and others. Judgment for plaintiff, and defendant's appeal.

Reversed and action dismissed.

Judgment reversed as to defendant Hilliboe, and action dismissed as to him.

Noble Blood & Adamson, for appellants.

Lien statute must be strictly complied with to secure a lien. Philadelphia Seventh Nat. Bank v. Schenandoah Iron Co., 35 F. 442; Cross v. Butler, 72 Ga. 187; Finane v. Las Vegas Hotel Co., 3N. Mex. 260; Glynn v. Zabriskie, 19 R. I. 215; Shackelford v. Beck, 80 Va. 573; McGugin v. Ohio Riv. R. Co., 33 W.Va. 66; Baumbach Co. v. Laube, 74 N.W. 96; Brown & Haywood Co. v. Trane, 73 N.W. 561; Scott v. Christianson, 85 N.W. 658.

Notice must be given to owner of material furnished to contractor and subcontractor, or lien is void. Whiteside v. Lebcher, 17 P. 548; St. Croix Lumber Co. v. Mitchell, 6 Dak. 215, 50 N.W. 624; 20 Am. & Eng. Enc. Law (2d Ed.) 376; Taylor v. Dahn, 51 Am. St. Rep. 312; Robertson Lumber Co. v. Bank of Edinburg, 14 N.D. 511, 105 N.W. 719; McMillan v. Phillips, 5 Dak. 294, 40 N.W. 349.

Weeks & Murphy, for respondents.

Objection to sufficiency of complaint must be taken in lower court. Caledonia Gold Mining Co. v. Noonan, 3 Dak. 189, 14 N.W. 426; McCabe v. Desnoyers, 108 N.W. 341; Zion Church of Evangelical Ass'n of North America in Charles City v. Parker, 86 N.W. 60; Reeves v. Howard, 91 N.W. 896; Strow v. Allen, 98 N.W. 141.

Variance between complaint and proof cannot be challenged for the first time in Supreme Court. Ashe v. Beasley, 6 N.D. 191, 69 N.W. 188.

Objection to evidence as "incompetent and immaterial" does not present a question for review. Caledonia Gold Mining Co. v. Noonan, supra; Kolka v. Jones, 6 N.D. 461, 71 N.W. 558; Bright v. Ecker, 69 N.W. 824; Hooper v. Railway Co., 33 N.W. 314; Taylor v. Wendling, 24 N.W. 40; Olson v. Burlington, C. R. & N. R. Co., 81 N.W. 634.

Where an instrument whose contents are to be proven, is itself a notice, notice to produce original is not necessary to the offering of secondary proof. 17 Cyc. 559; Brentner v. Chicago, M. & St. P. Ry. Co., 12 N.W. 615; Smith v. K. C. St. J. & C. B. R. Co., 12 N.W. 619.

Testimony of agent of a corporation is admissible against a deceased. Muhlback v. So. Baltimore Co., 1 L. R. A. 507.

Failure to file lien within ninety days affects only payments made after that time. Robertson Lumber Co. v. State Bank of Edinburg, 14 N.D. 511, 105 N.W. 719.

OPINION

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, 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.S. 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; Caledonia 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. 253; Collins v. Denny Clay Co., 41 Wash. 136, 82 P. 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 Am. & 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 dependent 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 had furnished materials was given by the cashier of the plaintiff bank. This testimony is also objected to on the same grounds urged against the evidence as to the completion of the building. The prohibition of the statute covers the evidence of parties to actions or proceedings, and does not include the agents of parties. To hold that agents are also barred from giving such evidence by this statute would be adding to its terms, which it not warranted. As said in Hanf v. Insurance Co., 76 Wis 450, 45 N.W. 315, in construing a section of the statute of similar import: "That section only excludes the testimony of a party to the action * * * of transactions and communications had by him personally with the deceased or insane person through whom the opposite party claims or defends. It does not exclude the testimony of the agent of the party or person whose...