H. C. Behrens Lumber Co. v. Lager

• Decision Date: 02 March 1910
• Citation: 125 N.W. 574,25 S.D. 139
• Parties: H. C. BEHRENS LUMBER CO. et al. v. LAGER et al.
• Court: South Dakota Supreme Court

25 S.D. 139

125 N.W. 574

H. C. BEHRENS LUMBER CO. et al.

v.LAGER et al.

Supreme Court of South Dakota.

March 2, 1910.

Appeal from Circuit Court, Brown County.

Action by the H. C. Behrens Lumber Company and another against Hattie E. Lager and others. Judgment for defendants, and plaintiffs appeal. Affirmed.Jorgenson & McNaghten, for appellants.

W. F. Mason and Chas N. Harris, for respondents.

CORSON, J.

This was an action by the plaintiffs to enforce mechanics' liens against certain city lots in the city of Aberdeen for lumber and material alleged to have been furnished for, and used in the construction of, buildings upon said lots. Findings and judgment being in favor of the defendants, the plaintiffs have appealed. The case was tried to the court without a jury, and the court made findings of fact and conclusions of law, upon which a judgment was entered. No motion for a new trial was made in the trial court.

It is contended by the appellants that the findings of the court are not supported by the evidence, and that the conclusions of law are not sustained by the findings. In the absence of a motion for a new trial the findings of the trial court are conclusive upon this court, and the evidence to support such findings will not be reviewed by this court on appeal. This rule was established by this court in the case of Pierce et al. v. Manning, 2 S. D. 517, 51 N. W. 332, and has been uniformly adhered to by the court in numerous decisions made by it since the decision in that case. In Northwestern Elevator Co. v. Lee et al., 15 S. D. 114, 87 N. W. 581, this court, in discussing a similar question, says: “When a case is tried by the court without a jury, a party objecting to the findings may except to the same; and, in case the court fails to find upon issues which a party may deem necessary in order to properly present his case, he may prepare such findings as he desires, and present them to the court, and if the court refuses to find as requested, he may except to the ruling of the court. These exceptions can only properly be reviewed by this court after a motion made for a new trial in the court below, in which that court's attention has been particularly called to the particulars in which the evidence is insufficient to support the findings, or under which the party is entitled to additional findings.” There having been, in the case at bar, no motion made for a new trial, the findings, as before stated, are conclusive upon this court, and the only question to be considered by this court is whether the judgment is sustained by the pleadings, findings, and conclusions of law of the court. It is disclosed by the record that upon the case being called for trial the defendants objected to any evidence under the first 10 paragraphs of the complaint, which set out the cause of action of the H. C. Behrens Lumber Company, for the reason that it does not state facts sufficient to constitute a cause of action. This objection, in the nature of a demurrer to the complaint, was sustained by the court.

It is contended by the appellants that the ruling of the court constitutes an error of law, and therefore is subject to review on this appeal. We are of the opinion that the appellants are right in their contention, and that the alleged error of the court in holding that the complaint did not state sufficient facts to constitute a cause of action is subject to...