Huse v. Washburn

OetoN, J.

This suit is for the foreclosure of a mechanic’s lien for drilling a well or fountain upon the defendant’s premises. There appears to be sufficient evidence to support the verdict of the jury and tbe finding of the court upon the facts of the work and labor and’value thereof. The errors assigned will be disposed of in their order.

1. The court caused a jury to be impaneled to try the issue of indebtedness, without the demand of either party. This is a suit in equity (Willer v. Bergenthal, 50 Wis., 474 ), and because it is, the court may, on its own motion, submit any question of fact to a jury in order to aid or advise the court in respect thereto. Gunn v. Madigan, 28 Wis., 158 ; Carroll v. Bohan, 43 Wis., 218 ; Du Pont v. Davis, 35 Wis., 636 .

2. Exceptions are taken to the rulings of the court in respect to evidence and to the instructions of the court to the jury. Errors cannot be alleged of this kind in an equity case. The only question is, Was there competent evidence to warrant the verdict or finding. Law v. Grant, 37 Wis., 548 ; Will of Meurer, 44 Wis., 392 ; Sylvester v. Guernsey, 22 Wis., 569 ; Taylor v. Collins, 51 Wis., 123 . The verdict pf the jury is only advisory, and may be disregarded or embodied in the findings of the court. In this case the county court made its own findings of all the issues, and in doing so its finding of the indebtedness is the same as the verdict .of the jury. The statute (sec. 3323, R. S.) allows a jury in such a case on the demand of either party, but this does not take away the power of a court of chancery to order a jury when it deems it advisable for its own assistance, nor does it render the vei’dict any more conclusive than in other equity cases, where a jury has not been demanded.

3. The original petition was defective in not describing the land, and the court allowed its amendment in that particular. The right to do so is found in sec. 3320, R. S., and decided to be proper under the Revised Statutes in a case brought before the revision took effect, but tried afterwards, *417 and for a claim arising under a former statute. Sherry v. Schraage, 48 Wis., 93 . See, also, Witte v. Meyer, 11 Wis., 296 ; Brown v. La Crosse City G. L. & C. Co., 16 Wis., 555 ; McCoy v. Quick, 30 Wis., 521 .

4. The complaint itself does not state that the debt is due, but the complaint embodies the petition and makes it a part of the complaint, and the petition does so state, which, is sufficient.

5. The judgment being in due form of foreclosure, is followed by an order that on the coming in of the report of sale and after the confirmation ’thereof, judgment be rendered- for the deficiency. It is perhaps a sufficient answer that no judgment for a deficiency has yet been rendered, and may never be rendered, and this order is no part of the judgment appealed from. Boynton v. Sisson, 56 Wis., 401 . But such a conditional order is proper (Tormey v. Gerhart, 41 Wis., 54 ), and might be entered under the prayer for general relief without any demand therefor in the complaint; or the complaint may be treated as amended in that respect to conform to the order. Sec. 2830, R. S.

By the Court.— The judgment of the county court is affirmed. v