Grant v. St. James Mining Co.

BUDGE, J.

This is an action to foreclose a laborer’s lien. The claim of lien upon which the action is based was for $2,693. The action was tried by the court. Findings of fact and conclusions of law were filed and a judgment entered decreeing respondent entitled to a lien for $525, the foreclosure of the same, and awarding him attorney fee in the sum of $125, and his costs. This appeal is from the judgment. Appellant contends that the court erred in not dismissing the cause and denying respondent a lien, for the reason that the claim filed was greatly in excess of any possible claim against appellant. No issue was raised on this point, nor was any motion or objection made raising it upon the trial of the cause.

The rule is well settled that a party cannot avail himself of a defense for the first time in the appellate court, nor will a question not raised in the trial court be considered on appeal. (Smith v. Sterling, 1 Ida. 128 ; Taylor v. Hall, 8 Ida. 757 , 71 Pac. 116 ; Miller v. Donovan, 11 Ida. 545 , 83 Pac. 608 ; Marysville Merc. Co. v. Home Fire Ins. Co., 21 *223 Ida. 377 , 121 Pac. 1026 .) While there are certain exceptions to the foregoing rule, they are not involved, in this proceeding. A particular application of this general rule has been made in cases of this character by holding that a defect or irregularity in the claim of lien is waived by a failure to make timely objection thereto. (27 Cyc. 206; General Fire Extinguisher Co. v. Magee Garpet Works, 199 Pa. St. 647, 49 Atl. 366 ; Wharton v. Real Estate Investment Co., 180 Pa. St. 168, 57 Am. St. 629, 36 Atl. 725 ; Klinefelter v. Baum, 172 Pa. St. 652, 33 Atl. 582 ; Wheeler v. Ralph, 4 Wash. 617 , 30 Pac. 709 .)

It is next urged that the court erred in not finding that-respondent was responsible for certain dynamite valued at $330, which it is alleged he had wrongfully charged to appellant and sold to the Guelph Company. The contention upon the trial was that respondent had purchased this dynamite for appellant without authority, and had converted it to his own use and had never accounted to appellant therefor. The evidence shows that the dynamite was purchased for appellant company and that the purchase was authorized by one Whelan, then the secretary of the company. The court found that appellant’s claim that respondent had appropriated the dynamite to his own use and benefit was not supported by the evidence. This finding is supported by the evidence, which, although conflicting, shows that the sale to the Guelph Company was ratified by the proper officers of appellant company.

Appellant also insists that the court erred in not finding that respondent had received $214 for boarding two men from the C. & E. Mining Company, and appropriated it to his own use and benefit. However, this item in the pleadings was only claimed by appellant" company as an offset against other sums claimed by respondent which the court disallowed. The answer admits that appellant owes respondent $525 for services, subject only to an offset for the $330 item above disposed of, and a certain draft as to which appellant’s claim has been upon this appeal abandoned.

*224 Assignments 4, 5 and 6 need not be discussed, since they are in effect disposed of by what has already been said.

The seventh assignment, that the court erred in allowing an attorney fee and in making a decree in favor of plaintiff, is without merit, for the reason that it depends upon the sufficiency of the first assignment touching the existence of any lien whatever, it having been stipulated upon the trial that if the court found respondent entitled to a lien, he might award such fee as he thought reasonable.

The judgment is affirmed. Costs are awarded to respondent.

Morgan, C. J., and Rice, J., concur.