Newcomb v. White
| Decision Date | 28 January 1890 |
| Parties | NEWCOMB et al. v. WHITE et al. |
| Court | New Mexico Supreme Court |
Error to district court, Grant county.
Elliott & Pickett, for plaintiffs in error.
G. D Buatz, for defendants in error.
This is a petition, filed in chancery, to foreclose four mechanics' liens, upon a certain frame building situated on the S.E. 1/4 of section 3, in township 18 S. of range 14 W. of P. M. of New Mexico, near the boundary line of the town-site of the town of Silver City, in Grant county, N. M and commonly known as the "Newcomb's Mill," for work and labor performed on said mill building by the defendants in error, George A. White and others. To this petition the plaintiffs in error filed a demurrer to so much of said petition as attempted to set up a lien and enforce the same in favor of one of the original complainants namely, Charles C. Harris. Upon the demurrer as to White there was no action of the court below. Plaintiffs in error then filed their answer to said petition, denying the material allegations of the same. The defendants in error then filed a general replication to said answer; and thereupon the cause was referred to A. H. Harlee, as special master in chancery, to take the proofs and report the equities of the cause to the court. The master proceeded to take the proofs, and reported to the court that the defendant in error Milton Barnes was entitled to the sum of $115, with interest at 6 per centum per annum from the 2d day of January, 1886; John Hastings was entitled to the sum of $532 with interest from the same date; and that the said defendants in error were entitled to a lien on the property described in the original petition. To this report of the master, the plaintiffs in error filed objections and exceptions, which were overruled by the court below, and the master's report confirmed. The plaintiffs in error appeal to this court.
The plaintiffs in error assign four errors, the first of which is that the property is not sufficiently described in the bill of complaint or notice of lien attached thereto. We do not think this objection well taken, in point of fact. The description of the property which is set forth in the foregoing statement of facts shows the property to have been fully and minutely described; and, as counsel for the appellants stated in their argument of the cause that they did not insist upon this point, we need not consider it further.
The plaintiffs in error, in their second assignment of error insist that William H. Newcomb, one of the appellants, should have been allowed his claim of set-off of $500 against the claim of Robert Black, one of the defendants in error. This was a question for the court trying the cause to determine from the preponderance of the evidence adduced; and the finding of that court on matters of fact has the same force and effect as the verdict of a jury, and this court will not disturb it, without there was some gross mistake, or flagrant injustice done. Blauvelt v. Woodworth, 31 N.Y. 285. Where an issue of fact is made, and evidence is offered for and against the same, this court has no authority to review the evidence, and determine that the weight of it was, other than as found by the court or jury trying the case below. We can only re-examine the law as the judge has pronounced it, upon the state of facts as presented to him. Hyde v. Booraem, 16 Pet. 169; Bond v. Brown, 12 How. 254.
If the master's report involves matters of account, exceptions should be taken to the particular items, or class of items, objected to, (Ransom v. Winn, 18 How. 295;) and, to make the exception available, it must appear that there was a ruling by the court upon it in some way affecting the decision appealed from, (Railroad Co. v. Smith, 21 Wall. 255.) The record before us shows that there was no exception taken by the plaintiffs in error to any item of account contained in the master's report, and therefore there is no question under this assignment of error which this court can consider.
The third assignment of error is as follows: "The master erred, in his report, in finding that Hastings and Black should receive four dollars per day for wages of the men who worked on said property, while said Hastings and Black paid said men but three dollars per day." This assignment attempts to bring in review by this court the construction given by the court below to a verbal contract introduced in evidence before the master, and construed by the chancellor; but, as the record shows that no exceptions were taken at the time, we must presume that the construction given to this verbal contract by the chancellor was correct. This court will not examine evidence to ascertain whether the lower court or jury was justifiable in finding as it has done. Gregg v. Moss, 14 Wall. 564; Express Co. v. Ware, 20 Wall. 543.
The fourth assignment of error is as follows: This could hardly be regarded effective, in the face of White's proceeding in the cause at a period subsequent to the one mentioned in this assignment. On page 146 of the record we find the following: The following statute is relied upon to support this exception: "The plaintiff, in any suit pending in the district court, may, at any time in the vacation of said court, file in the clerk's office of said court a written dismissal of his suit; and said cause from that date shall be considered as dismissed at the cost of said plaintiff, and judgment shall be entered accordingly at the ensuing...
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