Opinion
No. 5592
Opinion Filed February 29, 1916.
APPEAL AND ERROR — Mechanics' Liens — Presentation Below — Admission of Evidence — Trial by Court. Evidence examined, and held sufficient to sustain the findings and judgment of the trial court.
(Syllabus by Rummons, C.)
Error from District Court, Muskogee County; R.C. Allen, Judge.
Action by T.J. Whitfield and another against James T. Haizlip and others. Judgment for plaintiffs, and defendants bring error. Affirmed.
S.H. Lattimore, for plaintiffs in error.
Harry G. Davis, for defendants in error.
This appeal is from a judgment of the district court of Muskogee county decreeing the defendants in error to be entitled to a mechanic's lien upon certain real estate in Muskogee county, the property of plaintiffs in error. The plaintiffs in error make four assignments of error, as follows: First, the court erred in overruling the motion of plaintiffs in error for a new trial; second, there is error in the assessment of the amount of recovery, the same being too large; third, the judgment is not sustained by sufficient evidence; fourth, the judgment is contrary to law. The motion for new trial assigns the last three assignments of error as grounds therefor. We think that we can dispose of each of these contentions at the same time.
The case was tried to the court without the intervention of a jury, resulting in a judgment for the defendants in error for the amount claimed and decreeing them to be entitled to a mechanic's lien on the property described in the petition. There was evidence on behalf of defendants in error tending to show that they had furnished materials for the erection of a house upon the real estate of plaintiffs in error under a subcontract with W.D. Case, the original contractor, and that the last item of material so furnished was delivered on January 30, 1911; that defendants in error thereafter, on March 21, 1911, duly filed with the clerk of the district court of Muskogee county their mechanic's lien statement, and duly served notice thereof on plaintiffs in error; that such material so furnished amounted to the sum of $557.48, the amount claimed by defendants in error; that no part of the same had been paid. This being the case, and the evidence offered by the defendants in error having been admitted by the court without objection or exception by plaintiffs in error, and plaintiffs in error neither having demurred to the evidence of defendants in error nor moved the court for judgment upon the evidence, the errors complained of by plaintiffs in error cannot be considered. Where evidence is admitted without objection tending to sustain the judgment of the trial court, this court will not reverse the judgment of the court below, although an objection to such evidence might have been successfully interposed. Where the plaintiffs in error elect to submit the issues to a jury, or to a court without the intervention of a jury, upon the evidence, without objection and exception, the verdict is conclusive in this court, except upon the ground that it is excessive, due to prejudice and passion. Muskogee Electric Traction Co. v. Reed, 35 Okla. 334, 130 P. 157.
The judgment of the court below should be affirmed.
By the Court: It is so ordered.