Newcomb v. White

Lee, J. This is a petition, filed in chancery, to* foreclose four mechanics’ liens J upon a certain frame building situated on the southeast quarter of section 3, in township 18 south, of range 14 west, of principal meridian of New Mexico, near the boundary line of the town site of the town of Silver City, in Grant county, New Mexico, and commonly known as ‘‘New-comb’s Mill,” for work and labor performed on said-mill building by the defendants in error, George A. White ánd others. To this petition the plaintiffs in error filed a demurrer to so much of said petition as attempted to set up a lien and enforce the same in favor of one of the original complainants, namely,'Charles C. Harris. Upon the demurrer as to White there was-no action of the court below. Piaintiffs in error then filed their answer to said petition, denying the material allegations of the same. The defendants in error then filed a general replication to said answer; and thereupon the cause was referred to A. H. Harlee, as special master in chancery, to take the proofs and report the equities of the cause to the court. The master proceeded to take the proofs, and reported to the court that the defendant in error Milton Barnes was entitled to the sum of $115, with interest at six per centum per annum from the second day of January, 1886; John Hastio gs was entitled to the sum of $532, with interest from the same date; and that the said defendants in error were entitled to a lien on the property described in the original petition. To this report of the master, the plaintiffs in error filed objections and exceptions, which were overruled by the court below, and the master’s report confirmed. The plaintiffs in error appeal to this court. The plaintiffs in error assign four errors, the first of which' is that the property is not sufficiently described in the bill of complaint, or notice of lien attached thereto. We do not think this objection well taken, in point of fact. The' description of the property which is set forth in the foregoing statement of facts shows the property to have been fully and minutely described; and, as counsel for the appellants stated in their argument of the cause that they' did not insist upon this point, we need not consider it further. mechanics’’Hem chancellor on The plaintiffs in error, in thqir second assignment of error insist that William H. Newcomb, one of the appellants, should have been allowed his claim of set-off of $500 against the claim of Robert Black, one of the defendants in error. This was a question for the court trying the cause to determine from the preponderance of the adduced; and the finding of that court on matters of fact has the same force and effect as the verdict of a jury, and this court will not disturb it, without there was some gross mistake, or flagrant injustice done. Blanvelt v. Woodworth, 31 N. Y. 285. Where an issue of faet is made, and evidence is offered for and against the same, this court has no authority to review the evidence, and determine that the weight of it was other than as found by the court or jury-trying the case below. We can only reexamine the-law as the judge has pronounced it, upon the state of facts as presented to him. Hyde v. Booraem, 16 Pet. (U. S.) 169; Bond v. Brown, 12 How. (U. S.) 254. „ ■ , Sonsiexcep' If the master’s report involves matters of account exceptions should be taken to the particular items, or class of items objected to (Ransom v. Davis, 18 How. (U. S.) 295); and, to make-the exception available, it must appear that there was a ruling by the court upon it in some way affecting the decision appealed from (Railroad Co. v. Smith, 21 Wall. (U. S.) 255). The record before us shows that there was no exception taken by the plaintiffs in error to any item of account contained in the-master’s report, and therefore there is no question under this assignment of error which this court can consider. Construction t°ract- presSmp,lonThe third assignment of error is as follows: “The-master erred, in his report, in finding that Hastings and Black should receive four dollars per day for wages-of the men who worked on said property, while said Hastings and Black paid said men but three dollars per day.” This assignment attempts to bring in review by this COUl’t the Construction given by the court below to a verbal contract introduced in evidence before the-master, and construed by the chancellor; but, as the-record shows that no exceptions were taken at the time, we must presume that the construction given to-this verbal contract by the chancellor was correct. This court will not examine evidence to ascertain-whether the lower court or jury was justifiable in finding as it has done. Gregg v. Moss, 14 Wall. (U. S.) 564; Express Co. v. Ward, 20 Wall. (U. S.) 548. dismissal of suit isdi«ion°of: 3Ur‘ master. The fourth assignment of error is as follows: “The master erred in making any report in reference-to the claim of complainant White, one of the defendants in error, for the reason that he (the master) had no jurisdiction over White’s claim; the said White having dismissed the same, and filed his dismissal with the clerk of the court, as required by law. White’s dismissal was before the master.” This could hardly be regarded effective, in the face of White’s proceeding in the cause at a period subsequent to the one mentioned in this assignment. On page 146 of the record we find the following: “And now comes the complainant George A. White, and .excepts and objects to that portion of the report of the special master in the above cause wherein the said master fails to find in favor of said complainant in his report of the amount of his said claim, and also of the lien thereof, who prays the master to allow the same, and sustain these exceptions. “Asheneelter and Bantz, “Solicitors for Plaintiff.” The following statute is relied upon to support this exception: “The plaintiff, in any suit pending in the district court, may, at any time in the vacation of said court, file in the clerk’s office of said court a written dismissal of his suit; and said cause from that date shall be considered as dismissed at the cost of said plaintiff, and judgment shall be entered accordingly at the ensuing term of the district court.” Compiled Laws, New Mexico, section 1857. This section applies only to common law causes. In a proceeding, where a complainant has brought in other parties, whose equitable rights and interests have become involved in the cause, it becomes a question for the court to determine, whether he will be allowed to dismiss his case, and, if so, on what terms. Even if the statute applied to equity causes, as the record in this cause shows this party in the active prosecution of his case to the end, the presumption necessarily follows that he -waived his application to dismiss. From the record before us, it appears that there were no exceptions taken to any of the rulings of the court below. In such a state of the record, it must be apparent that there is no question before this court for review. The judgment of the court below is affirmed, with costs. Long, O. J., and McFie and Whiteman, JJ., concur.