Davis v. Bortveit

KING, J.,

pro tem.

The action is for the foreclosure of a lien for a balance due for labor and materials furnished in plastering a dwelling constructed for defendant Margaret J. Church, the contractors being Bortveit & Morton. The action was dismissed as to all except Margaret J. Church, and judgment went for plaintiff against her.

The question before the court is largely one of fact, the specifications of error being that the evidence is insufficient to justify the findings and decision as to (1) finding IV; (2) finding V; (3) the court erred in not finding that the building was completed and accepted on July 21, 1928; (4) the court erred in rendering judgment against appellant, and (5) that the decision is against law.

The plastering was performed and respondent received $300 on account, the balance, $402, forming the basis of the action. The lien claim was filed October 24, 1928. No notice of completion was ever filed.

Finding IV, which is attacked, is that beginning on the twenty-first day of July, 1928, and continuing for more than thirty days thereafter, no work was done on the building. Finding V, also attacked, finds that the sewer work was not finished until September 25th, and that it was a “necessary and integral part of said building and was pro

[677]

vided for in the original plans and specifications of said building”. If either finding be true, respondent’s lien claim was filed in time, and appellant’s main contention must be decided against her.

It appears by the testimony of defendant’s husband that he paid the balance due before leaving on a trip on July 14th.

Appellant also maintains in her brief that finding II is not supported by the evidence, but failed to specify in the bill of exceptions that she desired to attack this finding. Respondent contends that under these circumstances “the court cannot now review finding No. II”, and cites

Mills

v.

Brady,