Kellogg v. Matthews
| Decision Date | 06 May 1893 |
| Citation | 51 Kan. 418,32 P. 1090 |
| Court | Kansas Supreme Court |
| Parties | FRANCES E. KELLOGG et al. v. BISSANTZ & MATTHEWS et al |
Error from Sedgwick District Court.
ACTION to enforce a mechanic's lien. On the judgment entered determining the priority of the liens, the owner and the mortgagees bring the case to this court. All the material facts appear in the opinion herein, filed May 6, 1893.
Judgment affirmed.
Stanley & Hume, for plaintiffs in error:
The petition of Bissantz & Matthews was an ordinary petition on an account, and a statement of a mechanic's lien, and prayed for a personal judgment against Mrs. Kellogg, and foreclosure of the lien. Darlington and Cooper filed verified answers, denying every allegation of the petition of the plaintiffs below. They were mortgagees, and had a right in the foreclosure of their mortgages to contest the validity as well as the priority, of the alleged liens of each of the defendants in error. Hentig v. Sperry, 38 Kan. 461. See also, Hayner v. Eberhardt, 37 Kan. 308; Weaver v. Sells, 10 id. 610; Delahay v. Goldie, 17 id. 265.
Our second point involves the question whether or not the conclusions of fact show that the statements for mechanics' liens of each of the defendants were verified as required by statute; and, if not verified, is the fact of such want of verification fatal to the validity of such statements? We claim that the verification of a statement for a mechanic's lien is as essential as the facts which must be incorporated in the statement itself. Hentig v. Sperry, 38 Kan. 461. See, also, Deatherage v. Woods, 37 Kan. 59; Hayner v. Eberhardt, 37 id. 308.
On the third point, we claim that what was proven with reference to what was contained in the statements for mechanics' liens, as filed by the defendants in error Peters, W. H Bail, Andrew Bail, and Watt, is shown in conclusion of fact No. 7. No lawyer will assert for a moment, that upon such conclusion it can be stated as a matter of law that the statements for mechanics' liens, as filed by said parties, were sufficient as mechanic's-lien statements. Such statements were defective in the following particulars: (1) The name of the contractor; (2) the name of the claimant; (3) a description of the property subject to the lien, verified by affidavit. See Civil Code, § 631.
Sankey & Campbell, for defendants in error Bissantz & Matthews:
The record in this case shows affirmatively, both that the hardware was sold under a parol contract, to be used in the dwelling house on which the mechanic's lien was established, and that the statement for the lien was duly verified.
If the assumption of plaintiffs in error, that by reason of the omission of the court to set out specifically that the hardware was sold under a contract, to use in the particular building against which the lien was claimed, and that the statement for a lien was properly verified, is a defect, this court would not disturb the judgment, for the reason that before error could be predicated thereon the attention of the court below must be called to the alleged omission or error, and given an opportunity to amend its findings or refuse so to do. See Cowling v. Greenleaf, 33 Kan. 571; Briggs v. Eggan, 17 id. 591. In this case, no motion or request was made to have the court amend its conclusions of fact, or pass upon the alleged omission, or give its conclusions upon the evidence on the points raised.
John D. Davis, for defendants in error Thomas Peters, Andrew Bail, Lemuel W. Watt, and W. H. Bail:
This case was tried by the court without a jury, and the findings of fact and the conclusions of law, together with the pleadings, have all been preserved and brought to this court, but the evidence has not. Where a case is tried before a district court without a jury, and a general finding of facts made upon oral testimony, such finding is a finding of every special thing necessary to sustain the general finding, and is conclusive in this court upon all doubtful or disputed questions of fact. Stout v. Townsend, 32 Kan. 425. See, also, Briggs v. Latham, 36 Kan. 208.
The case of Hentig v. Sperry, 38 Kan. 461, as cited by plaintiffs in error, has no bearing whatever upon this case.
In the case of Hayner v. Eberhardt, 37 Kan. 308, one of the issues made by the pleadings was the existence of the partnership, the other the execution of the lien; no evidence was offered to prove either; the defendant demurred; the trial court overruled the demurrer, which ruling was reversed by the supreme court.
The findings nor pleadings in this case do not show that the defendants Thomas Peters, Lemuel W. Watt, W. H. Bail, and Andrew Bail, or either of them, failed to prove the execution of their liens. Throughout the findings of fact, as found by court, and the pleadings in the case, there is interwoven an abundance of facts to prove and show conclusively that the statements as filed by the said defendants contained the necessary facts as required by law. We ask that the judgment of the lower court be not disturbed, and that the proceedings in error, so far as Lemuel W. Watt, W. H. Bail and Andrew Bail are concerned, be dismissed.
Frances E. Kellogg, who was the owner of real estate in the city of Wichita, began the erection of a dwelling house thereon on July 1, 1887. Through her husband, who acted as her agent she contracted with and employed Thomas Peters, Andrew Bail, William H. Bail and Lemuel W. Watt as carpenters, to assist in the construction of the building, and, under this agreement, each of them performed labor upon the building until February 4, 1888. They were not paid for their labor, and on July 13, 1888, each filed in the office of the clerk of the district court a statement for a mechanic's lien. Bissantz & Matthews furnished hardware, which was purchased by the Kelloggs and used in...
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...the general finding was made and after the judgment was rendered." Held not error to refuse a special finding. In Kellogg v. Bissantz et al., 51 Kan. 418, 32 Pac. 1090, decided in 1893, but after we had borrowed the Kansas statute, it is held that in the absence of a finding upon a matter i......
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...the general finding was made and after the judgment was rendered." Held not error to refuse a special finding. In Kellogg v. Bissantz et al., 51 Kan. 418, 32 P. 1090, decided in 1893, but after we had borrowed the statute, it is held that in the absence of a finding upon a matter in issue, ......
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