Opinion
No. 11,102.
Decided December 1, 1924.
Action to recover the value of mortgaged property sold by mortgagor. Judgment for plaintiff.
Affirmed. On Application for Supersedeas.
1. APPEAL AND ERROR — Different Theory on Review. Where parties to an action try the case upon a certain theory, questions involving a different theory, and which were not raised in the trial court, will not be considered on review.
Error to the District Court of Yuma County, Hon. L. C. Stephenson, Judge.
Mr. M. M. BULKELEY, Mr. EDWIN H. PARK, Mr. RICHARD PEETE, for plaintiff in error.
No appearance for defendant in error.
THE defendant in error, plaintiff below, held a note secured by a deed of trust on land which at the time the action was begun, belonged to the plaintiff in error. A small house on the land having been blown down, the plaintiff in error sold the wreckage and it was removed from the land. The action was to recover the value of the material sold or removed, which was alleged to constitute a part of the security for the note. A trial to the court resulted in a finding and judgment in favor of the plaintiff for $115.00. Defendant brings error, and asks for a supersedeas.
The principal error argued is that the court erred in finding the value of the material sold, instead of the difference in value of the property with the material on it, and its value after the material had been removed.
The record shows that both parties proceeded upon the theory that the action was for the value of the lumber, or of the wrecked house, as it was when sold by defendant. The question now raised, not having been before the trial court, cannot be considered here.
We find nothing in the objections to the admission, or to the exclusion of evidence, which requires serious consideration.
The supersedeas is denied and the judgment is affirmed.
MR. JUSTICE ALLEN and MR. JUSTICE BURKE concur.