Duncan v. Everitt

Buck, J. The plaintiff commenced an action in the district court ■of St. Louis county against certain of the defendants, viz. Nellie M. Everitt individually and Charles A. Everitt and Lawrence F. Everitt, copartners as C. Everitt & Co., and the West Duluth Land ■Company, to foreclose a mechanic’s lien upon certain lots in West Duluth. Only the land company answered. By stipulation of the parties pleading, one Scott Hex was appointed by the court to take proofs of such facts as were necessary to enable the court to give judgment in the premises, and to report the same to the court. Such facts were so taken by the referee and reported to the court, but the referee also reported his conclusions of law. The court found the facts to be as reported by the referee, and found its own conclusions of law, and ordered judgment for plaintiffs, and directed that the premises be sold, and the proceeds applied to the payment of the costs of suit, and the amount found due plaintiffs, and also decreed the same to be a lien upon the premises. The judgment was rendered August 18, 1891. Up to this time the other defendants mentioned in this appeal had not been made parties to the action, and it did not concern them as to whether the referee erred in reporting to the court his conclusions of law. On the 3d day of October, 1891, these other defendants applied to be made parties in the action for the purpose also of having certain claims adjudged mechanics’ liens upon the same premises, and that upon a sale of said premises they be allowed to share in the proceeds of sale. For this purpose lengthy proceedings were had in the matter, which we deem unnecessary to state in detail. Their ■application was denied by the court below upon the ground that the ■alleged errors in the judgment complained of could only be reached and corrected, if they existed, by a motion for a new trial, based upon a settled case containing the evidence. Neither in that court nor in this is there any bill of exceptions or a statement of the case ■prepared and settled as required by law. The appeal from the ■order is not one denying a motion for a new trial, but an appeal from a certain order of the court below denying the motion of the intervening creditors to set aside and vacate the judgment rendered against them subsequent to the original judgment. What the errors or grounds for appeal are in the order or judgment ap [154] pealed from nowhere appears, for there is no bill of exceptions or settled case to enable this court to determine whether there was. error in the court below or not. (Opinion published 56 N. W. liep. 591.) The order and judgment appealed from are therefore affirmed.