Arnold v. Badger Lumber Co.

• Decision Date: 02 May 1893
• Citation: 36 Neb. 841,55 N.W. 269
• Parties: ARNOLD v. BADGER LUMBER CO. ET AL.
• Court: Nebraska Supreme Court

36 Neb. 841

55 N.W. 269

ARNOLD

v.BADGER LUMBER CO. ET AL.

Supreme Court of Nebraska.

May 2, 1893.

Syllabus by the Court.

After answer day, if a defendant files a pleading, in the nature of a cross petition, against his codefendants who have not appeared in the action, such codefendants can be concluded in respect thereto only by their appearance, or after the service on them of a notice, in the nature of a summons, as to such pleading.

Commissioners' decision. Error to district court, Lancaster county; Field, Judge.

Action by the Badger Lumber Company against Edna C. Arnold and others to enforce a mechanic's lien. On the judgment entered, defendant Arnold brings error. Reversed in part.Ores M. Quackenbush and J. E. Philpott, for plaintiff in error.

B. F. Johnson, for defendant in error.

RYAN, C.

On December 26, 1889, the Badger Lumber Company filed in the district court of Lancaster county its petition for the foreclosure of its claim for a mechanic's lien on lot 10, block 5, in Sunnyside addition to the city of Lincoln. Edna C. Arnold was made defendant, as the owner of said lot, while W. H. Tyler, F. W. Kent, S. J. Kent, George R. Miller, John Smith Sperry, B. G. Wright, and R. S. Young were joined as defendants, by reason of being claimants of liens on the same property. A summons was issued requiring the defendants to answer by the 22d day of April, 1889, which was in due time served on each of the defendants. Edna C. Arnold made no appearance, and the decree complained of was rendered against her upon her default. On April 24, 1889, W. H. Tyler filed his answer, claiming the foreclosure of a mechanic's lien on the property described. On April 24, 1889, R. S. Young also answered the petition, asking the enforcement of his claim to a like lien. B. G. Wright and F. W. Kent filed a like answer, each for himself, on May 27, 1889. George R. Miller filed an answer of like purport on May 23, 1889; and on June 4, 1889, an answer and cross petition, with the same purpose, was filed by J. S. Sperry. Finally, on November 21, 1889, the date of the decree, there was filed on behalf of S. J. Kent an answer and cross petition for the same relief as had been asked by the other defendants as against Edna C. Arnold. Except as to the claim of the Badger Lumber Company, no summons was issued, nor was notice of any kind served upon Edna C. Arnold, the owner of the property; neither did she in any manner appear for any purpose. The summons issued as to the petition of the Badger Lumber Company required the defendants, and each of them, to answer by April 22, 1889. The first answer was filed two days afterwards. From thenceforward they were dropped in until November 21st...