Opinion
No. 20861
Opinion Filed October 11, 1932.
(Syllabus.)
1. Liens — Action to Foreclose Merchanic's Lien on Automobile — Demurrer to Plaintiff's Evidence Properly Sustained.
In a law case tried to a jury where the plaintiff alleged an open account for labor and repairs to an automobile and sought to foreclose a mechanic's lien, and there is no competent evidence proving the open account and no competent evidence establishing the mechanic's lien, it was not error of the trial court to sustain a demurrer to plaintiff's evidence.
2. Same — Appeal and Error — Review of Judgment for Defendants on Cross-Petition for Conversion Where Cross-Petition not Controverted by Pleading and no Exceptions Saved to Instructions.
Where cross-petition is filed in an action by defendants against the plaintiff for conversion, and said cross-petition is not controverted by any pleading in the court below, and no exceptions saved to the instructions to the jury, the only question presented on appeal is, Was the evidence sufficient to sustain the verdict of the jury in favor of the defendants against the plaintiff?
3. Same — Judgment Sustained.
Record examined, and held, evidence sufficient to sustain the verdict of the defendants as against the plaintiff.
Appeal from District Court, Kay County; W.E. Rice, Judge.
Action by B.A. Kline, doing business as the H. H. Garage, against M.C. Merrihugh and Henrietta Kudder. Judgment for defendants on cross-petition, and plaintiff appeals. Affirmed.
Ralph C. Hayes and J.F. Murray, for plaintiff in error.
Walter M. Doggett, for defendants in error.
This is an appeal from the district court of Kay county, wherein the plaintiff in error, plaintiff below, brought suit in replevin and for foreclosure of a mechanic's lien for labor and material upon an automobile. Defendants in error, who were defendants below, answered by way of general denial, and filed cross-petition for the usable value of the automobile, which was later amended, asking for the value of the car in question. The cause was tried to a jury. The court sustained a demurrer to the plaintiff's evidence, and submitted the defendants' cause of action for conversion to the jury. The defendants' cause of action for conversion and for the usable value of the car was not controverted by the plaintiff in the pleadings. No exceptions were saved to the instructions of the court.
An examination of the record shows that plaintiff failed to prove his cause of action against the defendants or establish a valid mechanic's lien by competent evidence.
Several assignments of error are presented, but under the state of the record, there being no exceptions saved to the instructions of the court, and the cross-petition not being controverted by any pleadings in the court below, the only assignment of error that could be considered here would be the assignment that the evidence was insufficient to sustain the verdict of the jury, and the judgment of the court thereon, in favor of the defendants as against the plaintiff in the court below.
An examination of the record discloses that there is sufficient evidence to sustain the verdict of the jury.
Judgment of the trial court is affirmed.
LESTER, C. J., and CULLISON, SWINDALL, ANDREWS, McNEILL, and KORNEGAY, JJ., concur. RILEY and HEFNER, JJ., absent.