Rockey v. Meyers

• Decision Date: 21 July 1916
• Docket Number: No. 19892[250].,19892[250].
• Citation: 134 Minn. 468,158 N.W. 787
• Parties: ROCKEY v. MEYERS et al.
• Court: Minnesota Supreme Court

134 Minn. 468

158 N.W. 787

ROCKEY

v.MEYERS et al.

No. 19892[250].

Supreme Court of Minnesota.

July 21, 1916.

Appeal from District Court, Hennepin County; William E. Hale, Judge.

Action by A. D. Rockey against E. F. Meyers and others. From an order denying a motion for new trial, defendant Colin C. Joslyn appeals. Affirmed, without prejudice to right to request the trial court to find on issues litigated.C. C. Joslyn, of Minneapolis, for appellant.

Herbert T. Park and Jas. C. Melville, both of Minneapolis, and Christofferson & Burnquist, of St. Paul, for respondents.

PER CURIAM.

Defendant Meyers was in possession of a lot and house under a contract of purchase, when defendant Joslyn acquired the legal title subject to contract. Meyers made alterations and improvements for which plaintiff and the other defendants furnished material. Not being paid, liens were filed therefor, and this action brought to foreclose the same. The court made findings, and as conclusion of law declared the liens prior and superior to the interests of Meyers and Joslyn. No question is made except as to subjecting the interests of Joslyn to the liens. Joslyn moved for a new trial upon the ground of accident and surprise, newly discovered evidence, ‘and that the decision of the court herein is not justified by the evidence and is contrary to law.’ This appeal is from the order denying the motion.

[1] Joslyn testified that he did not authorize the improvements and did not know of their being undertaken until after the completion thereof, whereas Meyers testified that he told Joslyn what was being done while the work was under way. After the trial Joslyn procured an affidavit from Meyers to the effect that he was mistaken in his testimony as to dates. This constitutes the basis for the claim of accident, surprise, and newly discovered evidence. The learned trial court, who saw the parties, observed how Meyers was placed upon the stand, and how he stood the searching cross-examination to which he was subjected by Joslyn, was in far better position than this court to determine whether there was legal accident or surprise to Joslyn in the testimony of Meyers, and whether the latter's change of front was upon worthy motives, so that it might be considered newly discovered evidence, and we are not able to discern abuse of discretion in the determination made.

Improvements upon real estate are presumed to be made upon authority of the legal owner. Section 7024, G. S. 1913. Joslyn pleaded as a defense that he had not authorized the improvement and had no knowledge of any being made, and therefore was not bound by the failure to post notice. No specific findings were made upon this defense. It is plain that neither counsel nor court noticed the omission until after the appeal. The ground assigned in the motion for a new trial ‘that the decision is not justified by the evidence and is contrary to law’ does not suggest the defect in the findings. It, however, admits of no doubt that the...