McCaull-Webster Elevator Co. v. Adams

*269On Denying Petition for Rehearing.

Per Curiam.

The former opinion decided all the questions presented and argued by the respective counsel. In a petition for rehearing, respondent attempts to raise two new questions. He contends: 1. That the appeal should be dismissed because plaintiff appealed from a part of the judgment; and (2) that the findings of fact fail to show that, prior to the commencement of the action, ten days’ written notice of plaintiff’s intention to foreclose the mechanic’s lien was given to the record owner of the real property as required by § 6825, Comp. Laws 1913.

It is proper to state at the outset that counsel ought not to present their lawsuits piecemeal, as respondent’s counsel has attempted tó do in this case. The propositions now presented clearly should have been raised before the former decision was handed down.: Not only so, but the motion to dismiss the appeal should have been made as soon as possible and before the submission of the ease on its merits. 4 C. J. 594 et seq.

We are agreed, however, that there is no merit in either of the questions now presented.

Respondent asserts that there can be no appeal from a part of a judgment, and cites Prescott v. Brooks, 11 N. D. 93, 90 N. W. 129, and Hoellinger v. Hoellinger, 38 N. D. 636, 166 N. W. 519.

The cases cited are not in point. In those cases the appellant appealed from, and sought to obtain a trial de novo in the supreme court of, a part of a judgment. The question involved in those cases was not whether a party may appeal from a part of a judgment, but whether a party may appeal from a part of a judgment and obtain a trial de novo in the supreme court of a part of the case.

In the case at bar the evidence has not been transmitted to this court. The appellant has not asked for a trial anew of the case or of any ques-ton of fact therein. Appellant concedes that the findings are correct, and merely challenges the conclusions of law drawn by the trial court therefrom.

That in some eases an appeal may be taken from a part of a judgment is expressly recognized by § 7821, Comp. Laws 1913.

So far as the second point is concerned, respondent’s contention is •equally untenable. The trial court found that the material was fur*270nished under an agreement between plaintiff and defendant, and that-defendant was the owner of the premises when the agreement was made and the material furnished. It is presumed that a thing once found, to exist continues as long as is usual with things of that nature, and that the law has been obeyed. Oomp. Laws 1913, '§ 7936, subds. 32. and 33.

Rehearing denied.