Badger Lumber Co. v. Holmes

• Decision Date: 23 June 1898
• Parties: BADGER LUMBER CO. v. HOLMES ET AL.
• Court: Nebraska Supreme Court

55 Neb. 473

76 N.W. 174

BADGER LUMBER CO.

v.HOLMES ET AL.

Supreme Court of Nebraska.

June 23, 1898.

Syllabus by the Court.

1. Where a decree in favor of plaintiff, foreclosing a mechanic's lien, is reversed on an appeal by the defendants, and the cause remanded to the trial court for further proceedings, the situation of the plaintiff is precisely the same as if his rights had never been tried.

2. One who furnishes materials for all the buildings on several lots, under one contract, can make the entire debt a charge upon all the land, but not a charge on a portion thereof.

3. Where a portion of the premises has been absorbed by a prior lien thereon, such material man may have a lien for his entire debt on the remainder of the premises.

Appeal from district court, Lancaster county; Cornish, Judge.

Suit by the Badger Lumber Company against Emma H. Holmes and others to foreclose a mechanic's lien. From a decree for plaintiff, certain defendants appeal. Affirmed.Field & Brown and S. L. Geisthardt, for appellants.

Tibbets Bros., Morey & Ferris, and D. M. Vinsonhaler, for appellee.

NORVAL, J.

This is the second appearance of this cause in this court. The opinion on the former appeal is reported in 44 Neb. 244, 62 N. W. 446. The Badger Lumber Company, in pursuance of a contract entered into with Charles M. Cadwallader, furnished lumber and other materials for the erection of eight dwelling houses on lots 1, 2, 3, 10, 11, and 12, block 3, Avondale addition to the city of Lincoln. A verified account of said lumber and material was duly filed in the office of the register of deeds of Lancaster county, claiming a mechanic's lien upon said premises for $492.18, the balance remaining unpaid on said account. Subsequently this suit was instituted to foreclose plaintiff's claim for a mechanic's lien. Answers and cross petitions were filed by certain defendants, setting up mortgage liens upon a portion of the premises. Emma H. Holmes and John J. Gillilan, administrators of the estate of W. W. Holmes, deceased, have succeeded to the rights of the former owners of the equity of redemption. By the first decree entered in the district court the several mortgage liens on the premises were established, and plaintiff was adjudged to have a mechanic's lien for the balance of its account on the south 50 feet of lots 1 and 2, the north 50 feet and the south 50 feet of lots 11 and 12, and the west 45 feet of lot 10, in said block 3. The Holmes estate was awarded a first lien on the west 45 feet of lot 3 in said block. An appeal was prosecuted by the representatives of W. W. Holmes, deceased, on which appeal it was determined that the entire debt to plaintiff might be charged to all the real estate, but the whole indebtedness could not be charged to a part of the lots. Stated differently, the entire premises were liable for the cost of erecting the improvements, but such costs might be apportioned so that the parts of the lots charged should bear no greater amount of the expense than the value of the material actually used in erecting the improvements made on such part. Plaintiff on the first trial in the district court having been awarded a lien on a part of the real estate for the balance due it for the lumber and materials for the erection of the whole improvements, the decree in favor of the plaintiff was reversed, and the cause remanded to the trial court for further proceedings in accordance with the former opinion. After the reversal it was disclosed by supplemental...