Sœding v. Bartlett

DRYDEN, Judge, delivered the opinion of the court. Upon what principle the defendant White could, in the progress of the trial, demand that his name be stricken out as an unnecessary party, is not apparent. I know no practice to sustain any such proceeding. If he considered himself an unnecessary party to a complete determination of the action, he ought to have tested the question at the proper time by demurrer to the petition; but, failing to adopt that course, he must need await the verdict of the jury. The instructions asked by the appellants, which sought to question the sufficiency of the notice of the respondents to the owners of the property of their intention to claim a lien, were properly refused. There was no issue in the case making any proof on the subject of the notice necessary; the allegation of the petition, that the respondents had given such — 95 — notice, was not denied by the answer, and it therefore stood confessed. The answer denied “ any knowledge or information sufficient to form a belief whether or not a notice was served on them as required by law. This averment proposed to make an issue as to the lawfulness merely of the notice, and not as to the fact of notice. The fact being admitted, there was no issue for the jury; and, as a consequence, no testimony needed. There was no evidence in the case tending to show Hanson connected with, or interested in, the contract between the owners and Bartlett the contractor ; and the instructions asked by the appellants as to the effect of the supposed connection, were therefore, likewise, properly refused. Let the judgment be affirmed; the other judges concurring.