Crawford v. Anderson , 129 Ind. 117 ( 1891 )

McBride, J. —

This was a suit to recover for work and labor alleged to have been done by the appellee in repairing a dwelling house, in building a veranda appurtenant to it, in removing and repairing a smokehouse, repairing a woodshed, and in repairing and building an addition to a barn, the latter buildings all being alleged to be situate on the same tract of land, and appurtenant to the dwelling-house. The complaint also asked the foreclosure of a mechanic’s lien upon the property in question for the amount alleged to be due.

There was a trial, which resulted in a finding for the appellee, a judgment in his favor, with a decree foreclosing the lien. Several errors are assigned, and argued.

The first is, that the court erred in overruling a motion to make the complaint more specific. The record does not show that any such motion was made. There was a motion to strike out parts of the complaint, which was overruled, and counsel have argued at some length the error which they insist was thus committed. This question is not, however, properly before us. It is not covered by the assignment of errors. Even if it was, it has many times been decided by this court that overruling a motion to strike out a pleading or a part of a pleading is not error for which a cause will be reversed. Rowe v. Major, 92 Ind. 206, and cases cited; McLean v. Equitable, etc., Society, 100 Ind. 127, and many other cases.

The court overruled a demurrer to the complaint, and this ruling is assigned as error.

The only objection urged to the complaint, in the brief of counsel, is that it is not sufficiently specific. The demurrer was correctly overruled. The complaint is clearly sufficient to withstand demurrer.

The appellee testified as a witness in his own behalf, and the court sustained objections to two questions asked him on cross-examination, on the ground that they were not proper cross-examination. It is impossible, from the state of the record, for us to say whether this was error or not. The testimony, instead of being set out in full, giving questions and answers, is in narrative form. It is apparent that the witness was examined in the usual way, but that for some reason the questions are omitted, and the answers so modified as to appear in narrative form. Judging from the narrative the questions were probably legitimate cross-examining questions. Yet it can not be certainly said that they were. The circuit court is entitled to every reasonable presumption in favor of the regularity of its proceedings. In this court it must affirmatively appear that the court below ■did err, to justify reversing its judgment. A mere probability of error is not sufficient.

Appellant asks a reversal of the cause for the reason that evidence was allowed to go to the jury, and was considered by them, of the building of a privy, which was not embraced in the complaint. The record fails to show any objection, or exception, to this testimony. Such an objection can not be heard for the first time in this court. The objection must be made, and the exception taken, in the trial court.

The evidence is conflicting, and there is some evidence tending to sustain the verdict. We can not, therefore, reverse the judgment on the evidence, as we are asked to do.

One other question is discussed. The work was done in the repair of several different buildings. There was but one notice of lien — joint, and covering all the buildings — and the suit was to foreclose the lien upon all together. This, the .appellant insists, can not be done. There was but one tract of land. The buildings consisted of a dwelling, a barn, and other buildings, all appurtenant to the dwelling, and all situate on the same tract of land. While it is true that a joint lien can not be taken on two or more separate and distinct buildings, for work done or material furnished in their construction or repair, there is no reason why a joint lien may not be taken upon a dwelling with all its appurtenant outbuildings. All are, in law, considered as one building. A man's dwelling-house is not alone the building which actually shelters him and his family, but includes the cluster of appurtenant buildings. 2 Bishop Crim. Law, section 104. The common law crime of burglary could only be committed by entering the mansion, or dwelling-house of another. Yet Blackstone says: “ And if the barn, stable, or warehouse, be parcel of the mansion-house, and within the same common fence, though not under the same roof, or contiguous, a burglary may be committed therein ; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage, or homestall." 4 Blackstone, 225.

Filed Sept. 17, 1891.

The cases of Hill v. Braden, 54 Ind. 72, and Hill v. Ryan, 54 Ind. 118, cited by the appellant, lay down no' doctrine in conflict with this.

Judgment affirmed, with costs.