Gage v. Callanan ( 1908 )

Kellogg, J. (dissenting):

The complaint contained all the allegations necessary in an action to recover for the repairs and storage of the car. It also alleged a lien therefor, and in the prayer for relief sought the foreclosure of such lien, and “ that the plaintiff may have such other and further relief as may be just.” The evidence tended to show a personal liability against the defendant for the storage of the car. It also tended to show that one Connor, a machinist, who had done some work upon it, asserted a lien, and had foreclosed the lien and sold the car, and it had been taken by the purchaser from the plaintiff’s possession. This evidence was not contradicted, and the defendant did not call for the particulars of Connor’s claim, or the manner and circumstances of the sale of the machine.

At the close of the plaintiff’s case the defendant moved for a dismissal of the complaint “ upon grounds to be subsequently stated.” The defendant then put in his evidence, and the case was submitted to the justice for decision. Ho further motion for judgment or non-suit was made. Ho objection or question was raised during the trial as to the form of the pleadings or the form of judgment to be entered, and the only substantial contention by the appellant here and apparently for the first time is that the judgment “ deprives the defendant of his substantial right to have the car sold and the proceeds applied to satisfy the lien, and payment to him of the surplus.” That statement is intended to show the real grievance which the defendant has suffered and it is now for the first time urged that the recovery is not justified by the pleadings. If at the trial objection had been made in any manner to the form of the complaint or if it had been urged that the machine having been taken from the plaintiff’s possession by foreclosure of a lien against it, a money judgment could not be recovered, especially if the foreclosure was collusive, the questions now urged might be of some importance, but it is probable, if such objections had been urged, the plaintiff would have escaped their effect by seeking an amendment to his complaint or by the introduction of further evidence.

The case having been submitted upon the evidence and pleadings without any objection to the evidence or to the form of the complaint, the justice was justified in rendering any .decision consistent with the facts, without regard to technicalities based upon the form of' the complaint. All such objections were-waived and the case stands here solely upon the question whether the judgment is justified by the evidence. It is now too late for the appellant to urge these questions of practice and pleading which were overlooked or waived upon the trial.

I, therefore, favor an affirmance of the judgment.

Chester, J., concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.