Scroggin v. Nat'l Lumber Co.

• Court: Supreme Court of Nebraska
• Citation: 59 N.W. 548,41 Neb. 195
• Decision Date: 06 June 1894
• Parties: SCROGGIN v. NATIONAL LUMBER CO.

41 Neb. 195
59 N.W. 548

SCROGGIN
v.
NATIONAL LUMBER CO.

Supreme Court of Nebraska.

June 6, 1894.

Syllabus by the Court.

[59 N.W. 548]

1. Errors alleged to have occurred upon the trial of a case in the district court will not be reviewed here on petition in error unless the record discloses a motion for a new trial in the district court and a ruling thereon. This rule applies as well to equity cases, brought here by petition in error, as to cases at law.

2. Where a tenant erects buildings upon leased property without authority from the landlord, and the landlord afterwards acknowledges the expense of erecting such buildings as a proper charge by the tenant against him, and settles with the tenant upon that basis, such facts constitute a ratification of the tenant's acts, and render the landlord's estate subject to a mechanic's lien arising out of such improvements.

3. In such case the payment by the landlord to the tenant of the cost of the improvement does not defeat the lien.

4. The defense of the statute of limitations, if not raised either by demurrer or answer, is waived; and when sought to be raised by answer, in order to preserve the defense, the answer must be good against demurrer.

5. An answer alleging merely that the action was not brought within the time required by law, or until after the lien had expired by lapse of time, states conclusions merely, and is insufficient.

Error to district court, Nuckolls county; Morris, Judge.

Suit by the National Lumber Company against L. K. Scroggin to foreclose a mechanic's lien. Judgment for plaintiff, and defendant brings error. Affirmed.

[59 N.W. 549]

S. A. Searle, for plaintiff in error.

S. W. Christy, for defendant in error.

IRVINE, C.

None of the errors alleged to have occurred on the trial of this case can be considered, for the reason that the case is brought here by petition in error, and there was no motion for a new trial in the district court. Cropsey v. Wiggenhorn, 3 Neb. 108; Wells, Fargo & Co. v. Preston, Id. 444; Singleton v. Boyle, 4 Neb. 414; Hull v. Miller, 6 Neb. 128; Cruts v. Wray, 19 Neb. 581, 27 N. W. 634;Manning v. Cunningham, 21 Neb. 288, 31 N. W. 933;Smith v. Spaulding, 34 Neb. 128, 51 N. W. 469;Miller v. Antelope Co., 35 Neb. 237, 52 N. W. 1116. This rule applies as well to equity cases brought here on error as to cases at law. Harrington v. Latta, 23 Neb. 84, 36 N. W. 364;Carlow v. C. Aultman & Co., 28 Neb. 672, 44 N. W. 873;Fitzgerald v. Brandt, 36 Neb. 683, 54 N. W. 992;Gray v. Disbrow, 36 Neb. 857, 55 N. W. 255. This rule is so firmly established that parties would save to themselves expense, and to the court the expenditure of time which cannot be spared from the consideration of other cases, by paying due regard thereto. Whether or not the question is raised by the adverse party, this court will look into the record, and refuse to consider any assignments of error occurring at the trial unless the record discloses a motion for a new trial and a ruling thereon.

The only assignment of error sufficiently definite for consideration at all, and not relating to matters occurring upon the trial, is that the judgment is not supported by the findings of the court. A consideration of this assignment requires a statement of the pleadings. The defendant in error was the plaintiff below, and alleged the sale and delivery to the plaintiff in error, under an oral contract made by one McClellan, as agent for plaintiff in error, of certain lumber and material for the erection of a corncrib and hogpen upon the land of the plaintiff in error, and the filing of a claim of lien...