Great Spirit Springs Co. v. Chicago Lumber Co.

• Decision Date: 09 January 1892
• Citation: 47 Kan. 672,28 P. 714
• Parties: THE GREAT SPIRIT SPRINGS COMPANY v. THE CHICAGO LUMBER COMPANY
• Court: Kansas Supreme Court

28 P. 714

47 Kan. 672

THE GREAT SPIRIT SPRINGS COMPANY v. THE CHICAGO LUMBER COMPANY

Supreme Court of Kansas

January 9, 1892

Error from Mitchell District Court.

ACTION to enforce a mechanic's lien. The material facts appear in the opinion.

Judgment Affirmed.

Kelley & McNerney, for plaintiff in error.

J. W Sheafor, C. H. Hawkins, and A. W. Hicks, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

John H. Rodgers brought his action against the Great Spirit Springs Company, the Chicago Lumber Company, and others, to recover from the springs company the sum of $ 1,696.24, with interest from the 25th day of December, 1884, for work, labor and material in constructing a stone hotel upon the southeast quarter of section No. 25, township 6, range 10, Mitchell county, in this state, and to have the amount adjudged a lien upon the premises, which were alleged to be owned by the Great Spirit Springs Company. The Chicago Lumber Company filed its separate answer and cross-petition, alleging that John H. Rodgers was indebted to it in the sum of $ 1,688.61, with interest from the 30th day of June, 1884, for lumber and building material furnished and used in the construction of the hotel upon the premises described in the petition, and praying for judgment against plaintiff for said amount, and also for a foreclosure of a mechanic's lien filed on the 28th day of January, 1885. Subsequently, the Great Spirit Springs Company filed a reply to this answer and afterward amended the same. Trial was had before the court without a jury. Judgment was rendered in favor of the Chicago Lumber Company against John H. Rodgers in the sum of $ 2,128.26, with interest at 7 per cent., and also costs, taxed at $ 153.73. The trial court also decreed a foreclosure of the mechanic's lien filed by the Chicago Lumber Company upon the premises described in the petition, and owned by the Great Spirit Springs Company, for the amount of $ 2,043.34, with interest and costs. The springs company brings the case here.

It is contended that the special findings and judgment of the trial court are not supported by the evidence. The record, as to the evidence, comes to us in an unsatisfactory condition. The only statement that all of the evidence introduced at the trial is preserved in the record is the recital of the trial judge in his certificate to the case-made. This is insufficient.

"Where a case is made and settled for the supreme court, and the party making it desires that it shall be shown that the case contains all the evidence introduced on the trial, a statement to that effect shall be inserted in the case itself, and not in the certificate of the judge who settles the case." (Eddy v. Weaver, 37 Kan. 540, 15 P. 492; Insurance Co. v. Hogue, 41 id. 524.)

It is further contended that various errors occurred during the trial. These alleged errors cannot be reviewed, because no exception was taken to the overruling of the motion for a new trial. If any errors occurred they were waived thereby. (Lyons v. Bodenhamer, 7 Kan. 455; Nesbit v. Hines, 17 id. 317; City of Atchison v. Byrnes, 22 id. 68.)

It is claimed that the court, after the Chicago Lumber Company had introduced its evidence and rested, allowed an amendment to its answer and cross-petition, so as to allege the abandonment of the work by Rodgers, instead of the completion of the hotel, as alleged in the original answer. The condition of the record about the amendments allowed to the various pleadings is also unsatisfactory. If, however, the amendment was allowed, as claimed, as the Great Spirit Springs Company filed a general denial to the answer or cross-petition of the lumber company, it does not seem that any amendment was necessary to put in issue the alleged abandonment of the work by Rodgers. The court and parties upon the trial seem to have fully tried this issue; therefore no prejudicial error appears.

Really the only matter before us for consideration, owing to the condition of the record presented, is, whether the...