Burke Lumber & Coal Co. v. Anderson, 33909

• Decision Date: 27 April 1956
• Docket Number: No. 33909,33909
• Citation: 76 N.W.2d 630,162 Neb. 551
• Parties: BURKE LUMBER & COAL COMPANY, a corporation, Appellee, v. Robert ANDERSON and Robert Hankins, Appellants, Impleaded with Oluf Lauritsen, d/b/a Lauritsen's Hardware & Electric Store, Appellee.
• Court: Nebraska Supreme Court

Page 630

76 N.W.2d 630

162 Neb. 551

BURKE LUMBER & COAL COMPANY, a corporation, Appellee, v. Robert ANDERSON and Robert Hankins, Appellants, Impleaded with Oluf Lauritsen, d/b/a Lauritsen's Hardware & Electric Store, Appellee.

No. 33909.

Supreme Court of Nebraska.

April 27, 1956.

Syllabus by the Court.

1. A transcript of the proceedings at the trial to constitute a bill of exceptions must be settled as provided by statute and

filed with the papers in the case in the office of the clerk of the district court where the case was brought and prosecuted. Section 25-1140.06, R.S.Supp.1955.

2. Section 25-1140.06, R.S.Supp.1955, provides that it is the duty of the clerk to settle the bill in the case of the death of the judge before whom the cause was tried.

3. Where no extension of time has been granted, as authorized by section 25-1140.07, R.R.S.1943, the appellant is limited from the date of filing notice of appeal, to 40 days to reduce the bill of exceptions to writing, to 10 days thereafter to serve the same on the adverse party, to an additional 10 days to procure its return, and 10 days thereafter to procure a settlement and allowance of the bill. In other words, the bill must be prepared within 40 days after the filing of the notice of appeal, it must be served on the adverse party within 50 days thereafter, it must be examined and returned by the adverse party within 60 days, and it must be settled and allowed within 70 days. These limitations as to time are mandatory and they may not be waived.

4. This court takes judicial notice of the fact that a bill of exceptions was not prepared, served, returned, or settled and allowed within the time provided by statute, and therefore cannot be considered on appeal.

5. In the absence of a bill of exceptions, it is presumed that an issue of fact raised by the pleadings was sustained by the evidence, that it was correctly determined, and if the pleadings are sufficient to support the judgment of the district court, it will be affirmed.

6. A general appearance in a cause vests the court with complete jurisdiction of the person of the defendant appearing.

7. Where the trial court has jurisdiction of the subject matter in dispute and parties enter a general appearance and invoke the decision of the court on the merits of the controversy, in the absence of error being made to appear upon the record, the judgment will be upheld.

8. A bill of interpleader is an equitable remedy in harmony with statutory provisions, whereby a disinterested stakeholder in possession of a fund or other property claimed by each of rival defendants may require them to litigate among themselves the issue of ownership without embroiling him.

9. When two or more parties claim the ownership of a fund in the hands of a third, an action in equity may be maintained to recover the fund and to litigate and determine the ownership of it, and all persons claiming the fund are necessary and proper parties to the action.

10. When the determination of a controversy cannot be had without the presence of new parties to the suit, the statute directs the court to order them to be brought in. Section 25-323, R.R.S.1943.

11. Indispensable parties to a suit are those who not only have an interest in the subject matter of the controversy, but also have an interest of such a nature that a final decree cannot be made without affecting their interests, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.

12. When it appears that all indispensable parties to a proper and complete determination of an equity cause were not before the district court, the Supreme Court will remand the cause for the purpose of having such parties brought in even though no proper objection was made by any party litigant.

13. It is the intent of section 25-325, R.R.S.1943, upon interpleader by a stakeholder, that the stakeholder should pay the money held by the stakeholder into court or aver a willingness to pay it into court so that the court has control of the fund and its order as to the disposition may be made effective.

14. The court has the right to require the deposit of the fund involved as a condition precedent to a determination of the issue as to whom it shall be paid.

15. On an interpleader the stakeholder may deposit the fund or property into court, and ordinarily he is required to make, or to offer to make, such a deposit.

Richard E. Twohig, Mark J. Ryan, South Sioux City, for appellants.

Rodney R. Smith, South Sioux City, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This is an action brought for the foreclosure of a mechanic's lien. After decree, an interpleader issue involving a payment for a fire loss was injected into the case. The defendant Anderson is alleged to be the owner of the land involved. Other defendants are three alleged lienholders. Other defendants are husbands and wives alleged to have an interest in the property. Trial was had and decree was rendered. Defendant Anderson and defendant Hankins, an alleged lienholder, appeal.

We affirm the judgment of the trial court as to its foreclosure decree and reverse the judgment as to its decree involving the insurance feature.

We determine each appeal separately as each presents a different question. We first determine the appeal of defendant Hankins.

Plaintiff alleged its lien in the sum of $2,869.58 and interest, and prayed for foreclosure thereof.

Defendant Lauritsen answered, admitting the allegations of plaintiff's petition and by cross-petition alleged a mechanic's lien in the sum of $497.28 and interest, and prayed for foreclosure thereof.

Defendants Udell, husband and wife, answered disclaiming any interest in the property and praying for dismissal as to them.

Defendant Automatic Heating & Cooling Corporation filed an answer alleging that it was the owner of a mechanic's lien paramount and superior to the lien of the plaintiff. It prayed only for a dismissal of plaintiff's petition.

Defendant Hankins answered, denying generally, and by cross-petition alleged that he had a mechanic's lien on the premises for $1,543.72 which he claimed was a prior lien to that of the plaintiff. He prayed for judgment for $1,543.72 and 'equity.' On the day he filed the above pleading, another attorney filed for him an answer denying generally, and by cross-petition alleging the mechanic's lien and that it was equal in priority with that of the plaintiff and other lienholders. He prayed for foreclosure and a decree that his lien was equal in priority with that of plaintiff and other lienholders.

Defendant Anderson answered and, so far as material here, claimed credit for $500 alleged to have been paid the plaintiff, and also for a 10 percent contractor's discount. He prayed only for the proper credits on the account of plaintiff and for equitable relief.

In reply to defendant Hankins' answers and cross-petitions, plaintiff denied generally, and specifically denied that Hankins had any right to a lien. In reply to the answer of Anderson and to the answers and cross-petitions of Hankins, defendant Lauritsen denied generally.

By statement filed in the case, defendant Automatic Heating & Cooling Corporation admitted its lien was not filed in time and was invalid, and authorized a decree that it had no lien, and the case as to it was dismissed.

On May 16, 1955, the court rendered a decree on 'the evidence * * * heretofore submitted.'

The court decreed that plaintiff had a lien in the sum of $3,037.76 with interest; that Lauritsen had a lien for $526.48 with interest; and that said liens were coordinate and superior to any other liens. It decreed that Hankins had a lien for $1,696.04 subject and subordinate to the coordinate liens of plaintiff and Lauritsen.

It ordered the sale of the property to pay the liens in the order named, balance, if any, payable to defendant Anderson.

Defendant Hankins moved for rehearing contending that the 'facts and evidence' entitled his lien to equal priority with that of plaintiff and Lauritsen. The court considering this as a motion for a new trial, denied the motion on August 10, 1955.

A notice of appeal of the above, and matter later discussed herein, was filed September 8, 1955.

Defendant Hankins assigns error in the decree in that it did not accord his lien equal priority with that of plaintiff and Lauritsen.

A purported bill of exceptions of the trial of the foreclosure action is before us. It was prepared and delivered to counsel for Anderson and Hankins on October 14, 1955. This was within the time required by section 25-1140, R.R.S.1943. It shows that it was delivered to counsel for plaintiff and Lauritsen on October 17, 1955. This was done within the time required by section 25-1140.03, R.R.S.1943.

It was then filed on October 17, 1955, with the clerk of the district court. Whether that filing was had before or after the service upon counsel for plaintiff and Lauritsen does not appear. The clerk's certificate that it is the bill of exceptions is dated October 17, 1955.

In Wabel v. Ross, 153 Neb. 236, 44 N.W.2d 312, 314, we held that: 'A transcript of the proceedings at the trial to constitute a bill of exceptions must be settled as provided by statute and 'filed with the papers in the case' in the office of the clerk of the district court where the case was brought and prosecuted. Section 25-1140.06, R.R.S.1943.'

Here the only filing shown with the clerk of the district court was done before the bill had been settled. Obviously such a filing is not one contemplated by the requirement of the statute.

But the difficulty with the purported bill does not end there. The transcript shows that this foreclosure action was tried and the decree signed by Judge Frum. Judge Frum died. Judge Raun succeeded him. On November 4, 1955, Judge...