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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (April 1, 1911)
AGC TWO DAILY CAPITAL JOURNAL, SALEM, OREGON, SATURDAY, APRIL 1, 1911 SUPREME COURT HANDED DOWN OREGON SUPREME Full Text Published bj Courtesy of Supreme Crane Company t. Kill, et al, Colum umbla County. Crane Company, respondent, v. M. Ellis, defendant and appellant. The Adamant Company and Nottingham & Company, defendants and respond ents, and W. A. Currle, defendant. Appeal from the circuit court for Columbia county. The Hon. Thos. A. McBrlde, J. Argued and submitted March 8, 1911. - J. T. McKee (and Cake & Cake, on brief) for respond ent Crane Co. E. D. Seabrook (and Gemmans & Malarkey on brief) for appellant. Kollock & Zollinger (on brief) for respondent, The Adamant Co. A. T. Lewis, for respondent Not tingham & Co. Eakln, C. J.: Re versed. Eakln, C. J.: This Is a suit to foreclose mechanics' Hens. Plaintiff alleges that ft has a Hen In the sum of $114.87 for material and labor fur nished to defendantW. A. Currle, con tractor. In the erection of a building 1n Rainier, Columbia county, Oregon, defendant M. Ellis being the owner of the lot and building; that a notice of Hen was filed October 30, 1907, In the office of the county clerk of that county, alleging that the building was completed on October 15, 1907. Plaintiff further alleges that W. P. Fuller & Company secured a Hen on the building for the sum of $300 for material furnished to Currle In the construction thereof, notice of which Hen was filed In the county clerk's office on the 31st day of October, 1907, and that thereafter such company duly assigned Its claim and Hen there for to plaintiff. It is further alleged that the Adamant Company and Not tingham & Company claim some In terest in this property, and they are made parties defendant. The Ada mant Company, by answer, alleges that It has a lien upon the building for the sum of $140.40, for material furnished to Currle for the construc tion thereof, notice of which lien was tiled In the county clerk's office on the 12th day of November, 1907; and Nottingham & Combany alleges that It has a Hen in the sum of $130 upon such building for material fur nished to Currle In the construction thereof, notice of' which Hen was filed FREE TO YQlfrMY SISTER Of t - 111 jv I YJU J a a . . . ... wiuibui as wiuuinto brim , BI1U II T(u . fa"tlJ" ' fUl yooonly abont 11 oentaa week or 1ms than two cents a day. It affr?ff iaST25 J2ffiwor5 or ulMn- )t ata r am a iMr.ii. tell me how von utler ir you wish, and I will lend you the treatment for yourca.se, entirely frw.ln nlnln wiV H wl lr,,, J hof,,n "hZ omrn ulr. how they eaneaaily cure themfiu hT ! wum"'huld hara it, and learn to ftw tar tan.lf. then when the dm tor Mir 4i 2? uS n OP8'1'. youoandeoldeforyourHelf. Thounande of women haveciirtd ginrl home trtment which ipoedily and effectually eurea Ixraoorrhmw, Oreen Biokniar d uTuie 1 uUu' MMtrna' in young Ladles. Plumpneai and health alwaya results from Whornnr yon Vr. I nan refer you to Indian of your own locality who know and will kIiuIIt SKiilS - "' ", and ths free ten days treatment la yours, aln the book.- Write to-day, aa you may not tee thia offer amain. Address MRS, M. summers, BoH - " Notre Dame, Ind., U.S.A. 250 n We have for sale one of the best farms in Marion County, located only 5 1-2 miles from Salem on good ESTATE MUSTBES0LD 10 SETTLE UP AN WE SELL IN TRACTS AS FOLLOWS: 70 acres, all rich river bottom land, except 3 acres hillside for building site; $86, ( 35 acres first-class hillside land, mostly in cultiva tion; $86. 35 acres, 25 acres first-class hillside land and 10 acres rich bottom land; $86, 59 acres good hill land, mostly in cultivation; $83, 50 acres .mostly timber, with small hop yard $70, Oregon Electric survey through premises , Prevailing prices in this neighborhood almost double prices asked for this property , The bottom land on this place is first-class for alfal fa ,hay crops, peaches, hops and garden truck of all kinds, The hill land is ranked as first-class fruit land. There is a big bargain in every tract, . Phone Main 347, H.A.J0HNS0N&C0. 388 State Street, Salem, Ore. Phone 3tf OPINIONS LAST TUESDAY COURT DECISIONS F. A. Turner, Reporter of the Court. in the connty clerk's office Novem-' ber 11, 1907. The answer of defendant Ellis makes special denials of parts of the complaint and alleges that the build ing was completed on February 10, 1907; and that the notices of lien were not filed within 30 days after Its completion, and, therefore, no Hens are evidenced thereby. He makes similar answer to the cross comp!aInt8 of the Adamant Company and NottInghain& Company. The validity of the Hens depends upon the time of the completion of the building. The contention of plaintiff is, that although the main structure of the building was erected by March 1, 1907, and was occupied thereafter by Ellis, the sewer con nection between the building and the main sewer was not made until Octo ber 15, 1907; that It had been con structed from the street sewer toward the house prior thereto but lacked two and one-half or three feet of connecting with the pipe extending out from the house and that Currle completed the connection by placing a Joint and a half of tile therein on October 15, 1907. There Is no contention that any other construction work was done af ter the middle of August, at which time the cement floor was laid in the 1 basement. There Is some conflict In the evidence whether the sewer had been conncted before October 15, but the evidence Is convincing that It had been. Mr. Haggan, a witness called by plaintiff, and who was employed I by Currle about the first of August to test the pipes and complete the connection witn tne sewer, testified that, after the sewer was tested, he went to connect it and found that It had been connected; that It was be- i Ing used and water was running j through It into the street sewer, wnicn wouia nave Been impossime tr it had not been connected; that at that time he repaired a leak, at the point where the Ellis draw enters the street sewer, with cement; and that this was done prior to August 22. Mr. Plue, superintendent of the work for Ellis, testifies that, at the time Currle was laying the basement Free to You and Every Sister 8uf erlng from Woman's Ailments. I am a woman, I know woman' roffvuigt, I bare found the goto. I wlU mall, (ma of any charge, my Itm ma Ml with full Instruction to wit millerer from woman'aallmuit. 1 want to tell tU women about ; ruaunr, lor Toumeir, your daughter, your mother, or your aluter. 1 want to . A..h?w' t ;or jourtelvee at norm. 1th out the help of a dootor. Men cannat underutiii d womun'a suffering. Whatwewomen know from iitntwct, we know better than any UocUa. 1 know that my'home treatment In unto and mre eure for laKWttau WMIIil lachirin. UlnralNn. Olt llicMwnt tr ftlllM at Hit f tab. Pralaia, Scanli 0t rumful hfMt, UltflM tiftrwlM Tucwra, (rowlhi; alio paint Is ItM, tack u4 km la, taulag on faallnia. Mrannaia, "! m maoclulf, datita lo ciy, hoi Hiatal, nailMii, kldnir. mi tladdaf Iroubki tiua cmiiai wi mkMMM Meal in to our buz. I want to aend yon a twalata lit itft (rulntnf tatWr frN to prove to you that you can cure younaelf at home, easily, quiokly and jurely. Bemember, that, it will nit tea Mftilnto ACRES! floor, about the first of August, he I went over the sewer with Currle from one end to the other and that It was connected and was being used. Mr. Huycke. a clerk in the building (a store) testifies that the sinks and toi lets were used constantly after about the 15th of August Mr. Gulker, who aided In laying the floor of the base ment In August, says that the sewer was being used at that time. The only evidence that it was not con nected was by Currle, who Is corrob orated by Henry Nlekert, who helped In placing the tile necessary to con nect It, as he alleges, on October 15, 1907. But Nlekert did not know whether Currle had been there be fore or not, or what the condition of the sewer was prior to that time. We think the conclusion Is Irrest Ible that whatever was done to the sewer, after August 15, 1907, was not construction but repair work. The contract of construction was made In August, 1906, and required the com pletion of the building on or before December 1, 1906, to the satisfaction and under the direction of Mr. W. D. Plue. It was completed about the 28th day of February, 1907, except at that time, because of the wet condi tion of the ground, the contractor's time to cement the floor of the base ment was extended until it dried out. That was completed about the loth of August, 1907. Any other delay in the work, If any, was unreasonable, and the item alleged as constituting the completion of the work done 10 and a half months after the time limited by the contract was so unreasonable and long delayed that the contractor and those claiming under him are not entitled to any advantage there by, even if it was construction work. The owner of the building had a right to know when the building was completed and to act thereon for his own protection, In this case the only witness, except Nlekert, by whom plaintiff has attempted to es tablish the date of the completion of the work, is the contractor, to whom was paid the contract price for the contraction of the building, at a time when he led the owner to believe the building was completed, reserving a small amount of the contract price pending repairs of defects In con struction. From this money the con tractor should have paid those who furnished him material, and he now resorts to this trifling circumstance to compel Ellis to pay them for him, a circumstance which we cannot overlook In determining the weight to be given to the evidence. This question was considered in Coffey v.. Smith, 52 Or. 544, in which case Mr. Commissioner Slater says: "After the substantial completion of his contract on or about August 13, plaintiff should not be permitted, by unreasonable delay In the perform ance of trifling matters, which could and should have been done at an ear lier time, postpone the date from which the time allowed by the stat ute begins to run and the burden is on the lien claimant to show affirmatively that there was no unnecessary or unreasonable delay." In that case the situation was very similar to the present once. Even If the sewer was not connected until October 15, 1907, yet the circum stances were such that the omission could not operate to revive the right to file the lien. But we find from the preponderance of the evidence that It was connected and the build ing was completed prior to August 15, 1907. These lien claimants are charged with notice of the terms of the contract and there is nothing In the evidence to Indicate that, they were misled In any way. On the con trary, if they were noticing the progress of the building, they must have known that it was completed in February, except the basement floor which was completed before August 15. The decree of the lower court is reversed and one will be entered here dismissing the suit, with costs to de fendant Ellis both in this and the lower court. Mr. Justice McBrlde took no part In this decision. ' i, aim i. Asiurm .aauonai nana, et al Clatsop Oanty. John Hahn, appellant, v. Astoria National Bank and J. E. Hlggins, re spondents. Appeal from the circuit court for Clatsop county. Hon. J. U Campbell, judge. Submited on brief March 15, 1911. Motion to dismiss l appeal. O. C. Fulton, for respondents. William C. Bristol, for appellant Moore, J.: Motion denied, with privi lege of renewing at hearing. Moore, J.: This is a motion to dis miss an appeal on the ground that it was not talten within six months from the time the decree was ren dered. This cause having been tried the suit was dismissed January 4 1910, and seven days thereafter plain tiffs counsel moved to set aside the decree. The term at which the suit waa dismissed expired by limitation February 12, 1910, without the court hearing the application or making any order continuing it The motion last mentioned was denied November 25, 1910, and on the 21st of the fol lowing month an appeal was taken from such order and also from the decree. The rule formerly . regulatlne the setting aside of a judgment was, so far as Involved herein, as follows: 'The motion shall be heard and de- termlned during the term, unless the court continue the same for advise ment or want of time to hear It. When not so heard and determined or continued. It shall be deemed with drawn and may be disregarded." L. O. L. Sec. 175. This statute was amended at the legislative session of 1911 by an act which went into Im mediate effect, and contains a clause as follows: "Every appeal hereto fore taken within six months from the expiration of the time granted by any circuit court or Judge thereof for filing a motion to set aside the ver dict and for a new trial, or, if such motion shall have been filed within such time, then within six months from the date of the entry of the or der granting or denying such, motion shall be, and is, if such appeal is now pending and undetermined in the su preme court, hereby validated, and shall be deemed to have been taken within the time required by law; provided, however, that nothing here in contained shall be deemed to au thorize any appeal to be hereafter taken to the supreme court from any judgment of any circuit court grant ing or denying a motion to set aside the verdict and for a new trial un less such appeal be taken within six months from the date of the original entry of judgment." Some doubt exists as to whether the original statute or this amend ment Is applicable to appeals from decrees In equity and such being the case, It Is deemed proper to deny the motion for the present with leave to renew it when the cause is heard on Its merits, and It Is so ordered. Grover, et nl, t. The Hawthorne Is- tate, et nl, Multnomah County. LaFayette Grover and Elizabeth Grover, appellants, v. The Hawthorne Estate and Rachel Hawthorne, re spondents. Appeal from the circuit court for Multnomah county. The Hon. Henry E. McGinn, Judge. On motion for leave to examine wit nesses. Manning & White, Robert E. Hitch and E. S. J. McAllister, for ap pellants. C. H. Dolph, S. T. Richard son and Snow & McCamant, for re spondents. Per Curiam. Denied. Per Curiam: In this cause the ap peal was perfected on January 2, 1911. The transcript was filed on February 28, 1911. On March 10, 1911, respondents moved to dismiss the appeal because the transcript was not filed within the time limited by law. Appellants filed a motion on March 15, 1911, sugestlng a diminu tion of the record and secured an or der on the clerk below to -certify to this court a certain order made by the lower court on March 10, 1911, nunc pro tunc, as of date January 30, 1911, extending the time for filing the transcript on appeal 30 days. There after on March 23, respondents ap- plied to this court, under the provi sions of Sec. S32 L. O. L., for an order requiring the affiants in the affidavits filed in this court on March 15, 1911, to appear before the clerk of this court that they may be examined by respondents concerning the state ments set forth In such affidavits In aid of an application to vacate the nunc pro tunc order. - The order of this court upon the clerk of the lower court of date March 15, above mentioned, is not a provisional remedy within the mean ing of Sec. 832 L. O. I. Nor Is this court the proper place to take evi dence upon proceedings pending In the circuit court. If the nunc pro tunc order Is applied for In the lower court, the right to it must be deter mined by that court. The application Is denied. o ASTHMA CATARRH CURED Expert Medical Scientists Announce Startling; Eesults Obtained By Senplne New York: Thousands are taking advantage of the generous offer made by the Woodworth Co., 1161 Broad way, New York City, requesting an experimental package of Senplne, the great discovery of Asthma, Hay Fever, Bronchitis and Catarrh, which is mailed free of charge to all who write for it. It Is curing thousands of the most stubbern cases. It makes no difference how long you have climatic conditions are where you live, Senplne will cure you. 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