Crocker v. Currier

Lyoh, J.

1. A question of practice will first be disposed of. On motion of the defendant the court sent the case to a referee to hear, try, and determine the issues therein. The order of reference recites that this was done with the consent of both parties given in open court. It is not denied that such consent was given. On the hearing before the referee, however, both parties claimed that the case was not referable under the statute, and that the referee had no jurisdiction to hear, try, and determine the issues.

The point is not well taken for two reasons: (1) Any issue in any action may be referred if the parties consent thereto, and in this case they did so consent, and are bound thereby. (2) The trial of the issues herein required the examination of a long account, and the court had power, without such consent, to send such issues to a referee to hear and decide them. R. S. sec. 2861, subd. 1. There are over one hundred items in the disputed account:

2. It is not seriously questioned that the plaintiffs furnished the materials for and did the work upon the defendant’s house, for which they claim to recover in this action, and that the referee found the true balance therefor remaining unpaid. But the defendant claimed that he let the contract to one Calway to furnish the materials for and to erect the house for a specified sum, which the defendant paid him in full; and that the materials and work of the plaintiffs were furnished to and performed for Galway, and not the defendant. On the other hand, it was claimed that Galway was employed at .a stipulated price per day to superintend the erection of the house, and did not contract to furnish any materials therefor. This was the question to which the testimony given upon the trial was chiefly di *666 rected, and such testimony is very conflicting. Probably it is sufficient to support a finding either way.

It is correctly said that the referee failed to find what the contract was. This omission is assigned as error. We do not think a finding on that question is essential to a recovery by the plaintiffs. It is found that the materials were sold and delivered to the defendant by the plaintiffs, as principal contractors, and the work performed for him, and that, whatever contract may have existed between the latter and Oalway, the plaintiffs knew nothing of it. These findings are well sustained by the evidence, and by reason of the facts so found it is immaterial what were the terms of the contract between defendant and Oalway.

3. The finding that on June 25, 1881, the vdefendant had an interest in the lot upon which the house was erected, is assailed. He contracted for the lot with the owner, and paid for it. He paid from $600 to $1,000 of the cost of erecting the house. Before any conveyance of the lot had been executed, he went into possession thereof, and the lien of the plaintiffs vested. So, when their lien took effect, which was June 25, 1881, the defendant had purchased and paid for the land, and was in possession thereof under such purchase. He was then the absolute owner of the whole beneficial interest therein. There was nothing wanting but the naked legal title, and he was in a position to enforce a conveyance of such title to himself. It is entirely immaterial that he afterwards procured a conveyance of the lot to be made to his sister. Undoubtedly, at the time the lien vested, the defendant had an interest in the lot, as the referee found.

"We do not deem it necessary further to discuss the questions of fact involved in the issue. Suffice it to say that the testimony has been carefully examined, and we think it supports all the material findings of fact.

4. The lot upon which the house was erected contains *667 two fifths of one acre of land. A strip adjoining, six feet wide by eight rods long, inclnded in the judgment for a lien (and which is part of a public street), contains less than thirty square rods. There is also included in the judgment a lot adjoining that on which' the house stands, on the east and south, containing four fifths of an acre, which was conveyed to the defendant’s sister in May, 1882. Hence the judgment gives the plaintiffs a lien on the defendant’s interest in more than one acre of land. The conclusions of law reported by the referee, which are the basis of the judgment herein, limited the right of lien to one acre, and the limitation should not be disregarded in the judgment.

The conclusions of law may be regarded as a finding that the land in question was and is within the limits of an incorporated city or village, and hence that the right to a lien is limited to one acre. R. S. sec. 3311. We must hold the judgment erroneous in the particular under consideration.

But the error does not prejudice the defendant. He testified on the trial that he had no title to or interest in the four fifths of an acre, and he cannot complain if he is held to his statement. Having no interest therein, it is a matter of no importance to him whether it is included in the judgment or not. Hence, on his appeal, the error will not work a reversal of the judgment. True, he also testified that he had no interest in the lot on which the house stands. But we have already seen that such statement was abundantly negatived by other proof.- His statement concerning the four fifths of an acre was not so negatived.

5. The judgment commences in the usual form of personal judgments. It is ordered and adjudged therein that the plaintiffs “ do have and recover of the defendant, John Currier, the said sum of $255.81,” with costs. It is urged that this is a personal judgment in the first instance, which in such actions is unauthorized. An examination of the judgment shows that no execution is awarded for the sum *668 specified, but the judgment proceeds to direct a sale of the property, and provides that on confirmation of the sheriff’s report of sale, if there be a deficiency, the plaintiffs may have personal judgment therefor and execution. In view of these facts, the portion of the judgment above quoted was not intended to be and is not a personal judgment against defendant for the whole sum found due the plaintiffs, but only an assessment of the sum so due, as required by sec. 3324, R. S. A judgment in similar form, in an action to foreclose a mortgage, Was so construed by this court in Boynton v. Sisson, 56 Wis. 401 . See, also, Huse v. Washburn, 59 Wis. 414 .

6. Are the plaintiffs entitled to recover costs ? They are so ' entitled unless they have forfeited the right thereto, under ch. 202, Laws of 1882, by reason of their delay in entering judgment. This chapter requires the successful party in a cause to enter and perfect his judgment within sixty days after the filing of the findings of fact, or the rendition of a verdict. His neglect to do so is deemed a waiver of his right to recover costs, and the clerk is directed to enter the proper judgment without costs.

It is understood that the circuit court held this case not within the statute, because judgment went upon the report of a referee. We cannot concur ip this view of the law. The findings of the referee became, by confirmation, the findings of the court, just as effectually as if the court had heard the testimony and made the same findings without the interposition of a referee. Besides, judgment was signed by the judge, and rendered by the court, with the amount of costs left blank, more than sixty days before the costs were taxed and inserted therein. It is scarcely necessary to say that the case is not within the rule of Cornish v. Mil. & L. W. R. Co. 60 Wis. 476 . It is clearly within the statute, and the plaintiffs, by their delay to enter and perfect judgment within sixty days after the findings of the court in *669 their favor, waived their right to recover costs in the action.

7. Exceptions were taken by the defendant, before the referee, to certain rulings refusing to admit offered testimony. "We do not find any satisfactory proof in the record that these exceptions were renewed in the circuit court. The judgment recites that the court overruled all exceptions to the report of the referee. The record seems to be silent as to the -renewal of any other exceptions. Under a well-settled rule of practice, unless exceptions taken before the referee are renewed when the court acts upon his report, they are not available on appeal to this court. McDonnell v. Schricker, 44 Wis. 327 .

It is believed that the views herein expressed dispose of all material questions argued by counsel. It results therefrom that the judgment of the circuit court must be reversed as to costs, and affirmed in all other respects. Clerk’s fees will be taxed against the appellant. No other costs are allowed to either party.

By 'the Court.— Ordered- accordingly.