Crane Bros. Manuf'g Co. v. Keck

• Decision Date: 16 November 1892
• Citation: 35 Neb. 683,53 N.W. 606
• Parties: CRANE BROS. MANUF'G CO. v. KECK ET AL.
• Court: Nebraska Supreme Court

35 Neb. 683

53 N.W. 606

CRANE BROS. MANUF'G CO.

v.KECK ET AL.

Supreme Court of Nebraska.

Nov. 16, 1892.

Syllabus by the Court.

1. Where there are two or more principal defendants against whom the plaintiff is seeking to enforce a claim, there being no particular controversy between them, service of the bill of exceptions upon one of such defendants or his attorney within the time fixed by statute will be sufficient.

2. Where a defendant fails to file a motion to quash until after briefs upon the merits have been made and served, the court will consider the objection waived.

3. While, as between the debtor owing several debts and his creditor, where the former at the time of payment of a sum of money fails to designate the debt on which it is to be applied, the latter may do so, yet there is an exception to this rule, as, where the money was received by the debtor from a third party, whose property would be liable for the debt in case the money was not applied upon the third party's liability.

4. The instrument set out in the opinion is an order, which, as the drawee refused to accept the same, the plaintiff was not bound to furnish the material mentioned therein.

Appeal from district court, Buffalo county; HAMER, Judge.

Action by the Crane Bros. Manufacturing Company against Samantha Keck, Joseph Walthers, Thomas C. Brainard, and George W. Frank, to foreclose a mechanic's lien. From a judgment for defendants, plaintiff appeals. Reversed.Jeffrey & Rich and Brown & Brown, for appellant.

R. A. Moore and Calkins & Pratt, for appellees.

MAXWELL, C. J.

This is an action by material men to foreclose a mechanic's lien upon an hotel in the city of Kearney. On the trial of the cause the court below found that the whole value of the mater al furnished by the plaintiff was the sum of $643, and that the defendants had paid thereon the sum of $450, and that the defendant Keck had sustained damages by reason of the delay of the defendants in furnishing the material in the sum of $193. The court thereupon found for the defendants, and dismissed the action. The plaintiff appeals.

A motion is now made on behalf of Walthers to quash the bill of exceptions as to him, because it was not presented to him within 80 days from the rising of the court. The cause was tried on the 3d day of May, 1890, and judgment entered at that time. A bill of exceptions was thereupon duly prepared and submitted to the attorneys for Samantha Keck. Notice was given the attorney of Walthers that the bill was in their hands for examination and amendment. The bill seems to have been retained by such attorneys much beyond the 10 days allowed by law. When it was returned, however, it was presented to the attorney for Walthers, who refused to examine the same, and make any corrections thereon. The bill was thereupon presented to the judge, who signed the same. In this case, while the rights of the defendants are so far separate and distinct that a joint judgment is not sought against them, as against Walthers a judgment is asked for the amount of the debt, and it is sought to enforce the same against the property of his codefendant Keck, yet there is no diversity of interest between them as against the plaintiff, and they are so far joint that service of the bill upon the attorneys of either will justify the judge in signing the same. Where there are many defendants, who appeal by separate attorneys, it is impossible to serve the same bill upon all within 40, or even 80, days, and in fact it is not contemplated by statute. A service upon the principal defendants is all that is required. Ordinarily this will bring up the case as to all. The service, therefore, was sufficient.

2. The bill and transcript were filed in this court on the 3d day of November, 1890, and the motion to quash was not filed until after the briefs upon the merits had been filed. This is too late. The motion must, therefore, be overruled.

3. It appears from the record that Walthers had purchased a considerable quantity of plumbing material from the plaintiff; that he paid the plaintiff $100 and $150, money paid to him upon this account by his codefendant Keck. This money was paid without directions as to its application, and the plaintiff sought to apply it to another debt, and now claims the right to do so. As between the debtor and creditor, there is no doubt of the rule that, where the debtor fails to designate the debt, where there are several debts upon which the payment may be applied, the creditor may apply it. Where, however, the rights of third parties intervene, the rule does not apply. Thus, where A. was a creditor of a firm, and also of a surviving partner thereof individually, and the latter made a payment out of funds belonging to the firm without designating the debt on which it should be applied, it was held that as the funds belonged to the firm, they must be applied to the partnership debt. Wiesenfield v. Byrd, 17 S. C. 106; Thompson v. Brown, Moody. & M. 40; 18 Amer. & Eng. Enc. Law, 240. This rule was applied in Commissioners v. Springfield, 36 Ohio St. 643, where the county treasurer was ex officio treasurer of the city and its board of education, and also treasurer of the township of S. and its board of education. He received and mingled the moneys of these various corporations together. On a settlement with the county board he was unable to pay the amounts due the several corporations above named, but there was sufficient to satisfy the amount owing to the county, which the county board directed to be placed to the credit of the county, and appropriated to county purposes. The money was appropriated as directed, but it was held that the county was liable in equity to account to the other corporations for their proportionate share of the fund so appropriated. It is said: “The question, then, is whether the county of Clark is liable to the city of Springfield and...