Cockle Separator Manuf'g Co. v. Clark

• Decision Date: 28 March 1888
• Citation: 37 N.W. 628,23 Neb. 702
• Parties: COCKLE SEPARATOR MANUF'G CO. v. CLARK.
• Court: Nebraska Supreme Court

23 Neb. 702

37 N.W. 628

COCKLE SEPARATOR MANUF'G CO.

v.CLARK.

Supreme Court of Nebraska.

March 28, 1888.

Syllabus by the Court.

An order of the district court setting aside a decree, and permitting a defendant to plead to an answer filed by a co-defendant by leave of court, but of which said defendant had no notice, is not a final order. Spencer v. Thistle, 13 Neb. 227, 13 N. W. Rep. 214, distinguished.¹

Where a defendant files an answer against a co-defendant, seeking to enforce certain rights against his property, such answer is in the nature of a cross-petition; and, although no summons should be issued thereon, yet the co-defendant is entitled to the same time to plead thereto as though the defendant filing the answer was plaintiff, and the co-defendant sole defendant; and a decree taken before the time to plead has expired, is erroneous.

While all parties to an action are bound to take notice of pleadings properly filed within the time required by law, yet, where a party in default obtains leave of court to file a pleading affecting other parties, the parties so affected should be notified of the filing of such pleading, unless such persons or their attorneys are present when the order is made.

Error to district court, Adams county.

William Dikeman filed a petition for foreclosure of a mechanic's lien against S. W. Clark and other lien creditors. The Cockle Separator Manufacturing Company held a mortgage lien on the property, and, having been made codefendant, filed a cross-bill upon the mortgage, claiming judgment as second lien creditor. When the cause came on for hearing, Clark made no appearance, and thereupon default was taken, and judgment entered against him, and in favor of the Cockle Separator Manufacturing Company. Clark moved to vacate the decree, and the court allowed the motion. From this order the Cockle Separator Manufacturing Company brings error. There was a motion to dismiss on the ground of no final judgment.Batty & Casto, for plaintiff in error.

J. B. Cessna, for defendant in error.

MAXWELL, J.

On the 4th day of April, 1887, the plaintiff filed a petition against the defendants in the district court of Adams county to foreclose a mechanic's lien on certain mill property in the village of Juniata. A summons was duly issued and served on the defendants, requiring them to answer on the 9th day of May, 1887. Clark was the principal debtor; the other defendants being supposed to have some claim upon the real estate sought to be affected. The cause was afterwards dismissed as to Dilworth and Smith. On the 23d day of June, 1887, the Cockle Separator Manufacturing Company obtained leave to answer, and therupon filed an answer claiming a lien upon said premises by virtue of a certain mortgage executed thereon by the defendant Clark. The plaintiff's attorney waived notice, but no notice was given to the defendant Clark of the order of the court, or the filing of the answer. On the 25th day of June of that year, default was taken against Clark, and a decree entered foreclosing a mechanic's lien, and also the mortgage above referred to. Two days thereafter, Clark filed a motion to vacate the decree, and for leave to plead to the answer of the Cockle Separator Manufacturing Company. This motion was taken under advisement by the court, which on the 1st day of September, 1887, made an order as follows: “And now, on this day, said cause comes on for hearing, and the court, being fully advised in the premises, sustains said motion. It is therefore considered and adjudged by the court that the default taken against said Clark, and the decree and judgment heretofore rendered and entered in this case against said Clark, and in favor of the said Cockle Separator Manufacturing Company, be, and the same is hereby, set aside, and said Clark is hereby given leave to answer herein within 20 days, and the said Cockle Separator Manufacturing Company have 30 days to plead thereto, to which the Cockle Separator Manufacturing Company excepts,” etc. From this order the Cockle Separator Manufacturing Company brought the case into this court by petition in error. A motion is now made to dismiss the case because there is no final judgment, etc.

In a number of cases this court has held that an order granting a new trial during the term at which the judgment was rendered, is not a final order. Brown v. Edgerton, 14 Neb. 453, 16 N. W. Rep. 474;Artman v. Manufacturing Co., 16 Neb. 575, 20 N. W. Rep. 873;Wilson v. Shepherd, 15 Neb. 17, 16 N. W. Rep. 826;Daniels v. Tibbets, 16 Neb. 666, 21 N. W. Rep. 454. It is claimed, on behalf of the plaintiff in error, that ...