Northland Pine Company v. Melin Bros. Inc.
| Decision Date | 17 April 1919 |
| Docket Number | 21,118 |
| Citation | 171 N.W. 808,142 Minn. 233 |
| Parties | NORTHLAND PINE COMPANY v. MELIN BROS. INC. AND OTHERS; J. D. EKSTRUM, APPELLANT |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover judgment for $17,947.06 and to foreclose a mechanic's lien for the same. Other lien claimants joined in the proceeding and the case was tried before Steele, J., who made findings of fact and as conclusion of law found "that the building of the said eight flat buildings on the property described in the findings of fact herein was conceived, planned and carried out as one scheme and plan and constituted one single enterprise, the labor done upon and material furnished for said buildings was done and furnished indiscriminately for all of said buildings as one single integral improvement upon all of the property described in the findings of fact herein and the persons furnishing labor and materials for any part thereof are entitled to a lien upon the entire improvements and the entire land upon which said buildings and improvements are situated for the amounts found due them as set forth herein." The court ordered judgment in favor of numerous claimants for liens for labor and materials and ordered a sale of the entire premises described, subject to the interest of the holder of the sheriff's certificate of foreclosure of sale of the first mortgage on the property and subject to a specified second mortgage, and further ordered that if the property at such sale was not sold for enough to fully satisfy said lien claims the lien claimants were entitled to the appointment of a receiver to take possession of the property to protect and conserve it until the period of redemption from such sale expired, unless within six months, or such further time as the court directed, the defendant E. Luther Melin paid any deficiency that might exist after such sale or make substantial progress toward the completion of the building. From the judgment entered pursuant to the order for judgment, J. D. Ekstrum appealed. Affirmed.
Appeal and error -- change of theory.
1. A party cannot adopt in the trial court a theory of his cause of action, and of the relative rights of the other parties to the litigation, and obtain findings and judgment in accordance therewith nor invite error, and afterwards, on appeal, claim that the theory of the case was wrong and that the judgment was erroneous and that there was error in the proceedings.
Mechanic's lien -- improvement of adjoining lots -- statement -- assent of claimants to theory of trial.
2. The statute gives a mechanic's lien upon the premises improved, not exceeding one acre in an incorporated city. A lienholder who furnishes material for buildings upon adjoining lots may file one statement for his entire claim, or he may apportion it. This action was brought to foreclose a lien upon two adjoining blocks, exceeding one acre in extent, between which there was a street. The buildings were flat buildings covering both blocks. Some of the lien claimants filed on both blocks, some on one of them and some on particular lots in one or the other. The case was tried upon the theory that the flat buildings constituted one improvement and one enterprise, and that the two blocks were one tract, and that all the lien claimants were entitled to a lien upon both blocks regardless of whether the liens which they filed claimed it. All the parties assented to this theory and judgment was entered in accordance with it.
Mechanic's lien -- assignee of claimant cannot complain of theory of trial.
3. Under such circumstances the appellant, the assignee of a claimant who filed a lien on a part of one block, and whose lien, along with all others, was spread by the judgment over both blocks, and adjudged coordinate, cannot, on appeal from the judgment, complain of it.
John M. Berg, and D. Theodore Melin, for appellant.
Elijah Barton, A. B. Darelius and Everett Moon, for respondents.
This is an action to foreclose a mechanic's lien. There was a single judgment determining the lien claims of the plaintiff and of the defendant lien claimants and adjudging the priority of certain mortgages The appellant is the assignee after judgment of a defendant lien claimant.
1. A party to an action cannot in the trial court adopt a theory of the cause of action, or of the relative rights of himself and other parties, and obtain findings and...
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