Squier v. Mitchell

McCO'Y, J.

This is an action to foreclose a mechanic’s lien for labor alleged to have been performed in painting portions of a hotel building owned by defendants Mitchell and Pratt. Findings and judgment were in favor of plaintiff, and defendants appeal.

[1] It is urged that the evidence is insufficient to sustain the findings. There was much sharp conflict in the evidence as to whether or not the said owners of said hotel authorized Noonan and wife, occupants of said hotel, to employ plaintiff to do said paintink. Findings of fact based on conflicting evidence will not be disturbed on appeal, unless found to be against a dear preponderance of the testimony. We cannot say that such is the case here. It will serve no useful purpose to fully set out or further refer to the testimony in connection with this contention.

[2] Many assignments of error are made which are based upon exceptions to the reception or rejection of testimony. This was a trial before the court without a jury, and it must be presumed that in deciding the case the trial court eliminated from consideration all incompetent and improper evidence. 2 Ency. PI. & Pr. 474. In a trial before the court, where there is sufficient evidence remaining to support the findings after eliminating all objectionable evidence, the judgment will not be reversed on appeal. Such seems to be the situation in the case at bar.

[3] Defendants moved to suppress the depositions of Noonan and wife, on the ground that said depositions were not taken at the place where defendants were notified the same would be taken. The notice to take said depositions recited that the same would be'taken by Benjamin A. Sordal, a notary public, at 12 South Main street, in the city of Minot, state of North Dakota. The *345 motion to suppress was based on affidavits stating that said depositions were not taken at 12 South Main street, Minot, but at 12 North Main street, said Minot, and because of lack of notice defendants* rights were prejudiced, as said depositions were taken without notice to said defendants. Mere irregularities, which in no manner prejudice the substantial rights of a party, are not sufficient grounds for suppressing a deposition. Jones, -Ev. 709; 13 Cyc. 904. It does not in any manner appear from the statement in appellants’ brief 'that appellants were or could have been in any manner prejudiced or misled by reason of the words “12 South Main street” being used in the notice instead of the words "12 North Main street.” There is nothing appearing in this statement of the record that would tend to show that appellants or some of their attorneys did not know that “12 North Main street” was the place intended for the taking of said depositions. If appellants or any of their attorneys knew that “12 North Main street” was the place where said deposition was in fact intended to be taken, then appellants were in no manner prejudiced or misled. 12 North Main and 12 South Main in a city the size of Minot would in all probability not be more than a block apart. The burden is on appellants to affirmatively show error in the statement preceding the brief. There is nothing to show that the trial court erred in denying the motion to suppress the depositions.

[4] Some contention is made that, even if appellants, Mitchell and Pratt, did authorize Noonan to employ plaintiff to perform said labor on said building, unless said authorization was in writing, it was void, as the effect thereof was to charge real estate with a lien. We are of the opinion that this contention is not tenable, for the reason that a mechanic’s lien arises from the operation of the statute, and not by direct contract of the parties. If said appellants authorized Noonan to employ plaintiff, then the authorization was appellants’ act, the same as if appellants personally had employed' him. There is nothing in the law, of which we have any knowledge, that requires the contract for materials or labor, on which a mechanic’s lien may be based, to be in writing.

Finding no prejudical error in the record, the order and judgment appealed from are affirmed.