Grant v. St. James Mining Co., Ltd.

• Decision Date: 13 July 1920
• Citation: 33 Idaho 221,191 P. 359
• Parties: PETER B. GRANT, Respondent, v. ST. JAMES MINING COMPANY, LTD., a Corporation, Appellant
• Court: Idaho Supreme Court

191 P. 359

33 Idaho 221

PETER B. GRANT, Respondent, v. ST. JAMES MINING COMPANY, LTD., a Corporation, Appellant

Supreme Court of Idaho

July 13, 1920

APPEAL AND ERROR - QUESTIONS REVIEWABLE - MECHANIC'S LIEN - DEFECTS-WAIVER-FINDINGS.

1. As a general rule, a party cannot avail himself of a defense for the first time in the appellate court; nor will a question not raised in the trial court be considered on appeal.

2. A defect or irregularity in the claim of lien is waived by a failure to make timely objection thereto.

3. A finding that respondent had not appropriated property to his own use and benefit is sustained by evidence which shows that a sale of the property by him to a third party was ratified by the proper officers of the company owning the property.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Edgar C. Steele, Presiding Judge.

Action to foreclose a laborer's lien. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

John M Gleeson and H. J. Hull, for Appellant.

A lien claim being given as an extraordinary remedy, the best of good faith is required, and a filing for a greater sum than one is entitled to is fraud in law, and a lien case will be dismissed under such circumstances. (27 Cyc. 203; Brennan v. Miller, 97 Mich. 182, 56 N.W. 354; New Jersey Street etc. Co. v. Robinson, 85 A.D. 512, 83 N.Y.S. 450.)

Horning & McEvers and Chas. L. Heitman, for Respondent.

A question not raised in the pleadings, or by motion in the trial court, cannot be raised for the first time on appeal. (Marysville Mercantile Co. v. Home Fire Ins. Co., 21 Idaho 377, 121 P. 1026; Miller v. Donovan, 11 Idaho 545, 83 P. 608.)

A judgment will not be reversed on the ground of error which does not affect the substantial rights of the parties especially when such judgment is sustained by facts alleged and admitted by the pleadings of the respective parties. (Smith v. Ellis, 7 Idaho 196, 61 P. 695; Mine &amp Smelter Supply Co. v. Idaho-Consol. Mines Co., 20 Idaho 300, 118 P. 301.)

The failure of the trial court to make findings on certain issues is not reversible error, since the substantial rights of the party complaining were not affected. (Brown v. Macey, 13 Idaho 451, 90 P. 339; Robertson v. Moore, 10 Idaho 115, 77 P. 218; Shaw v. Martin, 20 Idaho 168, 117 P. 853.)

Plaintiff's right to a lien was not made an issue in the case, either in the pleadings or on the trial, and it is well-settled law in this state that attorney fees should be allowed the plaintiff in such actions as this.

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

This is an action to foreclose a laborer's lien. The claim of lien upon which the action is based was for $ 2,693. The action was tried by the court. Findings of fact and conclusions of law were filed and a judgment entered decreeing respondent entitled to a lien for $ 525, the foreclosure of the same, and awarding him attorney fee in the sum of $ 125, and his costs. This appeal is from the judgment. Appellant contends that the court erred in not dismissing the cause and denying respondent a lien, for the reason that the claim filed was greatly in excess of any possible claim against appellant. No issue was raised on this point, nor was any motion or objection made raising it upon the trial of the cause.

The rule is well settled that a party cannot avail himself of a defense for the first time in the appellate court, nor will a question not raised in the trial court be considered on appeal. (Smith v. Sterling, 1 Idaho 128; Taylor v. Hall, 8 Idaho 757, 71 P. 116; Miller v. Donovan, 11 Idaho 545, 83 P. 608; Marysville Merc. Co. v. Home Fire Ins. Co., 21 Idaho 377, 121 P. 1026.) While there are certain exceptions to the foregoing rule, they are not involved in this proceeding. A particular application of this general rule has been made in cases of this character by holding that a defect or irregularity in the claim of lien is waived by a failure to make timely objection thereto. (27 Cyc. 206; General Fire Extinguisher Co. v. Magee Carpet Works, 199 Pa. 647, 49 A. 366; Wharton v. Real Estate Investment Co., 180 Pa. 168, 57 Am. St. 629, 36 A. 725; Klinefelter v. Baum, 172 Pa. 652, 33 A. 582; Wheeler v. Ralph, 4 Wash. 617, 30 P. 709.)

It is next urged that the court erred in not finding that respondent was responsible for certain dynamite valued at $ 330, which it is alleged he had wrongfully charged to appellant and sold to the ...