(225 P.) of the laborer, and in this connection it may be advisable to call attention to C. S. § 9444, which reads as follows: much as no amendments were offered or filed, and no judgment rendered on these causes of action, they will be given no further consideration. All other special demurrers were "The rule of the common law that statutes overruled. Appellant thereupon filed its an-in derogation thereof are to be strictly conswer, which in effect constitutes a general denial. Upon the issues thus framed the cause was tried to the court sitting without a jury, and judgment was rendered in favor of respondents, from which judgment this appeal is taken. strued, has no application to these compiled laws. The compiled laws establish the law of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed, with a view to effect their objects and to promote justice." The trial court, in effect, held that the words "at the mill where manufactured," within the meaning of C. S. § 7357, included the lumber yard at Council, to which place the lumber and railroad ties were directly Three assignments of error are specified and relied upon by appellant. The first attacks the action of the court in overruling appellant's demurrer to the complaint and to each and every cause of action therein set forth. From the complaint it appears that causes of action Nos. 1 to 20, inclusive, are for the foreclosure of liens for labor perform-conveyed from the saw, to be sorted, stacked, ed and assistance rendered in the manuand dried. The phrase "at the mill" is a relfacture of lumber and railroad ties. Each ative term, and can hardly be said to mean cause of action contains, among others, the exclusively "contiguous to" or "attached to" following allegation: the mill, but may mean "near," "in the vicinity of," or "connected with" the mill. yard to which the lumber was conveyed was the only millyard belonging to and used in connection with the mill, and the only yard controlled or operated by the manufacturers of the lumber. The term "mill" in its legal analysis means, not merely the mill building, but includes the mill yard and everything necessary to its benefit. Should we be limited to a technical construction of the words "at the mill," a removal of the lumber from the The "The said lumber and railroad ties were sawed and manufactured at the sawmill aforesaid, and were forthwith taken and transported by the said A. J. Peterson and Gus Elmquist, their agents and employees, to a certain lumber yard situate at Council, Idaho, in said Adams county, near and adjacent to the Pacific & Idaho Northern Railroad wye, at said place, and were there piled, sorted, seasoned, and dried preparatory to being loaded on the cars for shipment; that during all of said times the said lumber yard was operated by the said A. J. Peterson and Gus Elmquist in conjunc-mill any distance, no matter how short, tion with said sawmill and as a part of said sawmill premises, and was and is the only lumber yard by them operated; that the said yard is the first and only place at which the said lumber and ties, or any part thereof, were ever piled, stored, or kept after the same were taken from the saw which sawed the same." Appellant contends that, since the complaint alleged that the lumber and railroad ties were removed from the mill where they were manufactured, and were stacked in a lumber yard at some distance, such lumber and railroad ties were not lienable within the provisions of C. S. § 7357, which provides as follows: "Every person performing labor upon, or who shall assist in manufacturing, saw logs into lumber, has a lien upon such lumber while the same remains at the mill where manufactured, whether such work or labor was done at the instance of the owner of such logs or of his agents." [1, 2, 6] We are therefore called upon to determine whether, under the allegations of the complaint above set out, the lumber and railroad ties remained "at the mill where manufactured" within the meaning of C. S. § 7357, supra, so as to entitle respondent to a lien thereon. In approaching this question it will be well to keep in mind the rule that lien statutes are remedial in character and should be liberally construed in the interest would destroy the right to a lien, and the laborer would be required to file his lien as fast as the lumber came from the saw and before it was removed. Had the lumber been sorted, stacked, and dried at the mill, or at any intermediate place, and afterwards hauled to the yard at Council, a different question would be presented. A proper interpretation of the words "at the mill" depends upon the facts of each individual case. We think, however, in the instant case that the term "at the mill" would include the lumber yard at Council. [3] It is next insisted by appellant that railroad ties manufactured at a sawmill are not lumber, within the meaning of C. S. § 7357, but "other timber," within the meaning of C. S. § 7356; the latter section being as follows: shall assist in obtaining or securing, saw logs, "Every person performing labor upon, or who spars, piles, cord wood, or other timber, has a lien upon the same for the work or labor done upon, or in obtaining or securing the same, whether such work or labor was done at the instance of the owner of the same or his agent. The cook shall be regarded as a person who assists in obtaining or securing the timber herein mentioned." Appellant contends that, since the liens sought to be foreclosed in causes of action Nos. 1 to 20, inclusive, are for work and labor performed and assistance rendered in the manfacture of lumber and railroad ties, respondent seeks to join claims of lien under two separate sections of the statute and to foreclose them in one action. Our attention is called to the case of Anderson v. Great Northern Railway Co., 25 Idaho, 433, 441, 138 Pac. 127, 129 (Ann. Cas. 1916C, 191), where this court said: "There is little room for doubt but that railroad ties are timber and fall within the enumeration of 'other timber' as used in section 5125, supra [now C. S. § 7356]. As authority in point and supporting this view see Forsberg v. Lundgren, 64 Wash. 427, 117 Pac. 244." It will be noted that Forsberg v. Lundgren is cited as authority for the rule laid down by this court in the Anderson Case. It is said in the Forsberg Case (64 Wash. 427, 117 Pac. 244): "The court found that the ties were cut and manufactured in the woods, which precludes any inference that they were manufactured at a mill." In that case they may have been sawed by a portable saw, split with a maul and wedge, or hewn with an axe. In the instant case it is alleged in the complaint "that all of said railroad ties are 'sawed ties,' and were manufactured in the course of the manufacture of said lumber," and that they "were sawed and manufactured at the sawmill." It therefore follows that the Anderson Case is not in point, and that the railroad ties in the instant case were lumber, within the meaning of C. S. § 7357. Railroad ties may be "other timber," within the meaning of C. S. § 7356, or "lumber," within the meaning of C. S. § 7357, depending upon the manner of their manufacture. If sawed at a sawmill, and as a part of the output of the mill, it would be unreasonable to hold that such railroad ties were "other timber," within the meaning of C. S. § 7356, and not lumber. Laborers would be required, under such circumstances, if such a rule of construction be adopted, to segregate the time spent in sawing railroad ties from the time spent in sawing lumber, otherwise their claim of lien would be defeated. To adopt the rule contended for by appellant would defeat the principle of law announced in the case of Phillips v. Salmon River Min., etc., Co., 9 Idaho, 149, 72 Pac. 886, where this court held, in construing a laborer's lien, that: "The provisions of our lien laws must be liberally construed with a view to effect their objects and promote justice." [4] The next question urged is as to whether a laborer who assists in procuring sawlogs has a lien upon the lumber manufactured therefrom. This involves causes of action Nos. 22 to 31, inclusive, in which it is sought to foreclose claims of lien filed upon sawlogs in the woods, lumber near the mill, and lum ber and railroad ties in the yard at Council. It is insisted by appellant that a laborer performing labor or assisting in obtaining or procuring sawlogs is only entitled to a lien on such sawlogs, and the right to such lien is lost upon such sawlogs being manufactured into lumber. With this contention we are not in accord, although there are some authorities that seem to sustain it. The fact that the logs are manufactured into lumber should not defeat the lien for labor performed or assistance rendered in procuring them. The logs were not destroyed, their form only being changed, and the lien continued as long as they could be followed and their identity could be established. Counsel urges that the lien cannot be enforced against the lumber made from the logs for another reason, namely, that the amount of the lien against the lumber was not segregated from the amount of the lien claimed against the sawlogs, and that respondent is seeking a lien under C. S. § 7356, for labor performed and assistance rendered in procuring sawlogs, and under C. S. § 7357, for labor performed upon or assistance rendered in manufacturing sawlogs into lumber, and in order to secure a lien on the logs and lumber the amounts should be segregated and two liens filed. As a matter of fact, respondent seeks to enforce his lien for labor performed in procuring sawlogs by filing the lien upon such as remained in that state (as sawlogs) and upon the lumber cut from the remainder. We think the rule to be well established that a laborer performing work in securing logs to be manufactured into lumber is entitled to a lien therefor on the lumber manufactured from the logs. Fischer v. G. W. Cone Lumber Co., 49 Or. 277, 89 Pac. 737; FirstNat. Bank v. Wegener (Or.) 186 Pac. 41; Day v. Green, 63 Or. 293, 127 Pac. 772. Appellant concedes that respondent is entitled to a lien upon the logs not manufactured into lumber. Therefore, if our position is correct, no segregation is necessary, nor would it be necessary to file two liens. To further support our position in the latter respect, a careful reading of C. S. §§ 7356-7371, discloses no such requirement, but quite to the contrary, as will be seen by C. S. § 7362, which provides for but one notice of lien on liens claimed under both C. S. §§ 7356, 7357. [5] We come now to the second assignment of error, which is as follows: "The court erred in the conclusions of law." This is not a proper assignment of error. Assignments of error, complaining of the entire conclusions of law as a whole, without specifying in what particulars they are erroneous, are too general to be considered. Houston E. & W. T. Ry. Co. v. Hamlin Lumber Co. (Tex. Civ. App.) 135 S. W. 605; Condron v. Pennsylvania R. Co., 233 Pa. 197, 82 Atl, 64; Elmendorf v. City of San Antonio (Tex. Civ. App.) 223 S. W. 631. There is still a further reason why this assignment of error should not (225 P.) be considered. It is conceded in appellant's, tled and allowed is properly before this court, brief as to causes of action Nos. 22 to 31, in- and the question of the insufficiency of the eviclusive, that respondent is entitled to a lien dence will be reviewed. on the logs; therefore the entire conclusions of the court were not erroneous, and, since there are numerous conclusions of law, we are not advised which particular conclusion is complained of. As was said in the case of Wolverton v. Wolverton, 163 Ind. 26, 71 N. E. 123: "An assignment that the court erred in its conclusions of law is joint, and cannot be sustained, where it is not contended that all the conclusions of law on the facts found are erroneous." To the same effect see Miller v. ArmstrongLandon Co., 53 Ind. App. 501, 102 N. E. 47. There is no merit in the third assignment of error. The judgment should be affirmed, and it is so ordered. Costs are awarded to respond ent. MCCARTHY, C. J., and WILLIAM A. LEE, J., concur. 2. Criminal law 564(1)—Indictment and information 166-Venue of criminal offense must be laid in information and proven; when venue in criminal offense not proven, conviction reversed and remanded. The venue of a criminal offense is a material allegation, and must be laid in the information and proven. Where it is not proven, a judgment of conviction will be reversed on appeal and the cause remanded for a new trial. Appeal from District Court, Madison County; Geo. W. Edgington, Judge. Thomas Siepert and others were convicted of the unlawful possession of intoxicating liquors, and they appeal. Reversed and remanded for new trial. Miller & Ricks, of Rexburg,, for appellants. A. H. Conner, Atty. Gen., and Jas. L Boone, Asst. Atty. Gen., for the State. BUDGE, C. J. Appellants were convicted of the crime of unlawful possession of inWM. E. LEE, J. I dissent from that part from an order overruling a motion for a new toxicating liquor. From the judgment and of the opinion which holds that one who per- trial this appeal is prosecuted. There is no forms labor upon or assists in securing saw-reporter's transcript. The case is here for logs has a lien, not only on the sawlogs, but review upon a bill of exceptions duly settled also upon the lumber into which such logs and allowed by the trial judge. are sawed. In my opinion, the lien accorded by C. S. § 7356, is confined to sawlogs. I also dissent from that portion of the opinion which holds that one who assists in manufacturing sawlogs into lumber has a lien upon such lumber after it has been removed to a lumber yard six miles distant from the mill where manufactured. C. S. § 7357, affords a lien to such a person "upon such lumber while the same remains at the mill where manufactured." "At the mill where manufactured" does not mean at a lumber yard six miles away. STATE v. SIEPERT et al. (No. 4195.) (Supreme Court of Idaho. Oct. 30, 1923. hearing Denied Dec. 27, 1923.) [1] The important question for determination is whether, in the absence of a reporter's transcript in lieu of a bill of exceptions, the insufficiency of the evidence to justify the verdict and judgment may be reviewed upon a bill of exceptions from an order overruling a motion for a new trial. Where a motion for a new trial is made after judgment and overruled, and the insufficiency of the evidence to support the verdict and judgment is set out in the notice and motion for new trial, and thereafter, in support of the motion, a bill of exceptions embodying the material testimony is before the trial court and considered by it in passing upon the motion, and is thereafter incorporated in and becomes a part of the record on appeal, the bill of exceptions so settled and allowed is propRe-erly before this court, and the question of the sufficiency of the evidence will be reviewed. C. S. § 9068, provides that: 1. Criminal law 1121 (1)—Sufficiency of evidence reviewed, where bill of exceptions considered below in motion for new trial made part of record on appeal. Under the provisions of C. S. § 9068, where a motion for a new trial is made after judgment and overruled, and the insufficiency of the evidence to support the verdict and judgment is set out in the notice and motion for new trial, and thereafter, in support of the motion, a bill of exceptions embodying the material testimony is before the trial court and considered by it in passing upon the motion, and is thereafter incorporated in and becomes a part of the record on appeal, the bill of exceptions so set "An appeal may be taken by the defendant: "1. From a final judgment of conviction. "2. From an order denying a motion for a new trial. "3. From any order made after judgment, affecting the substantial rights of the party. "Upon an appeal from a final judgment of conviction, if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal from an order denying a new trial, Providing, A specification of the particulars in which the evidence is insufficient to sustain the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes verdict is made in appellant's brief filed with the | 2. Pleading Supreme Court." Prior to the amendment of C. S. § 9068, supra, the only method of procuring a review of the evidence was upon appeal from an order granting or denying a motion for a new trial. State v. Lottridge, 29 Idaho, 53, 155 Pac. 487. Under the provisions of C. S. § 9068 an appeal may now be taken by the defendant from a final judgment of conviction, and, if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined, providing a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed in the Supreme Court. We have therefore properly before us for review the evidence contained in the bill of exceptions. If all of the evidence is not contained in the bill of exceptions, the fault rests with the prosecuting attorney for failure to propose amendments to the bill incorporating all of the evidence bearing upon the point. This court cannot presume that there is any evidence other than that contained in the bill, and this is particularly true, where there is a stipulation to the effect that the bill of exceptions contains all of the evidence, as in this case. People v. English, 52 Cal. 211. [2] Appellant has raised the point in his assignments of error that there is no proof of venue. The venue of an offense must be laid in the information and proven as any other material allegation. State v. Cole, 31 Idaho, 603, 174 Pac. 131. Proof of venue must be either direct or indirect, but it must be one or the other, and the record must show it or the judgment will be reversed. People v. Roach, 48 Cal. 382. The evidence contained in the bill of exceptions in this case fails to show proof of the venue as alleged in the information. 290(3)—Unverified answer insufficient to tender issue where verified answer required by statute. In all cases where a verified answer is required by C. S. § 6703, an unverified answer is insufficient to tender an issue. 3. Evidence 402-Parol evidence inadmissible to vary plain terms of note. Parol evidence is inadmissible to vary the plain terms and conditions of a promissory note. 4. Pleading 126-Denial that stipulated sum reasonable attorney's fee tenders no issue. promissory note alleges that $100 is a reasonWhere the complaint in an action on a able attorney fee, and the answer denies that $100 is a reasonable attorney fee, this is a negative pregnant, and tenders no issue. Appeal from District Court, Twin Falls County; T. Bailey Lee, Judge. Action by W. H. Craven against Steffen Bos. From a judgment for plaintiff, defendant appeals. Affirmed, S. D. Davis, O. C. Hall, and W. P. Guthrie, all of Twin Falls, for appellant. Bothwell & Chapman, of Twin Falls, for respondent. MCCARTHY, C. J. This is an action on a promissory note for $500 which the complaint alleges appellant executed and delivered to the Holland Realty & Investment Company and that company indorsed to respondent. It further alleges that respondent is the lawful owner and holder of the note; that $100 is a reasonable attorney's fee; and that the principal of $500 and $230 interest are due and unpaid. Respondent prays for judgment for the $500 principal, $230 interest, and $100 attorney fee. The complaint is duly verified. By an unverified answer appellant seeks to deny the execution and indorsement of the note and that any amount is due and owing. Later, in an affirmative In view of what has been said it follows defense, he sets up that he gave the note eithat the judgment must be reversed and the ther to the company or to respondent in paycause remanded for a new trial. There are ment for an interest in the business of the other errors assigned which we do not deem necessary to consider in view of the disposi-rector, agreed with him that he could pay company, and that respondent, who was a di tion of this case. MCCARTHY, DUNN, WILLIAM A. LEE, and WM. E. LEE, JJ., concur. $960 cash for such interest and give his notes for $1,000, payment of which would not be required of him until he had received sufficient profits from his interest in the concern to pay the same; that he paid the $960 cash and gave his note on this understanding. In this affirmative defense appellant also tries to set up the defense of failure of consideration. Respondent made a motion for judgap-ed that it would sustain the motion. Therement on the pleadings, and the court indicatupon counsel for appellant asked permission to file an amended answer to which respondent objected. The court sustained the objection to the filing of an amended answer CRAVEN v. BOS. (No. 3946.) (Supreme Court of Idaho. April 1, 1924.) 1. Appeal and error 959(1)-Ruling on plication to amend pleading not reversed except for abuse of discretion. The ruling of the trial court on an application to amend a pleading will not be reversed except for abuse of discretion. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) and granted the motion for judgment on the pleadings, entering judgment for respondent as prayed for. From this judgment an appeal is taken, the specifications of error being that the court erred (1) in refusing to allow appellant to file an amended answer and (2) in granting judgment on the pleadings. [1] Appellant was not entitled to amend his pleading as of course. C. S. § 6725. The motion for permission to amend was addressed to the discretion of the trial court, and its order will not be reversed unless it is shown that it abused its discretion. C. S. § 6726. The proposed amendment tendered by appellant is not in the record. The question would depend to some extent upon the nature and scope of the amendment proposed. Not having it before us, we are certainly not in position to say that the lower court abused its discretion. "Every pleading must be subscribed by the party or his attorney, and, when the complaint is verified, or when the state or any officer of the state, in his official capacity, is plaintiff, the answer must be verified unless an admission of the truth of the complaint might subject the party to a criminal prosecution, or un less an officer of the state in his official capacity is defendant. * *" C. S. § 6703. [2] The transcript shows that the complaint was verified and that the answer was unverified. It was therefore insufficient under the statute above quoted. Aside from this it is defective in other particulars. C. S. § 6704 provides that the genuineness and due execution of an instrument, a copy of which is contained in the complaint, are admitted unless the answer be verified. Under this provision the attempt to deny the genuineness and due excution of the note by an unverified answer must fail. Furthermore the attempted denial is contradicted by the allegations of the affirmative answer. [3] There are not allegations in the answer sufficient to state a defense on the ground of fraud. The allegations in regard to the alleged oral agreement do not state a defense. Parol evidence is inadmissible to vary the plain terms and conditions of a promissory note. International Harvester Co. v. Beverland (Idaho) 219 Pac. 201, and cases there cited. See, also, Commonwealth Trust Co. v. Coveney, 200 Mass. 379, 86 N. E. 895; Neal v. Wilson, 213 Mass. 336, 100 N. E. 544; Louis Eckels & Sons Ice Mfg. Co. v. Cornell Economizer Co., 119 Md. 107, 86 Atl. 38; Farmers' Bank v. Wickliffe, 131 Ky. 787, 116 S. W. 249; Stewart v. Gardner, 152 Ky. 120, 153 S. W. 3; Van Fossan v. Gibbs, 91 Kan. 866, 139 Pac. 174. Under these authorities the allegations in regard to the parol agreement that the note should be paid only out of profits which appellant might derive from the business would not constitute a defense. [4] The answer denies the allegation of the complaint that $100 is a reasonable attor action for contribution arises when one of several cosureties pays principal debt. principal debt, for which the sureties are obligated, the cause of action for contribution at once arises. When one of several cosureties pays the 3. Limitation of actions 28(1)-Action against cosureties for contribution, begun four years after payment of principal debt, barred. Where an action to enforce contribution is begun by one of several cosureties, who has paid the principal debt, more than four years barred by the provisions of C. S. § 6610. after the date of such payment, the action is Budge and William A. Lee, JJ., dissenting. Appeal from District Court, Gooding County; H. F. Ensign, Judge. John W. Morton. From a judgment for Action by E. M. Bell and another against plaintiffs, defendant appeals. Reversed, with directions. J. G. Watts, of Mountain Home, for appellant. Bissell & Bird, of Gooding, for respondents. "Interest payable annually, and if not so paid the whole sum of both principal and interest to become immediately due and collectible." The note was signed by Secor and wife and eight other parties, including the appellant and respondents herein, and was secured by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |