Gillespie v. Hynes, No. 34503

CourtSupreme Court of Nebraska
Writing for the CourtHeard before SIMMONS; CARTER; SIMMONS
Citation95 N.W.2d 457,168 Neb. 49
PartiesClarence GILLESPIE, Appellee, v. Michael HYNES, Appellant, Impleaded with Henrietta Hynes et al., Appellees.
Decision Date06 March 1959
Docket NumberNo. 34503

Page 457

95 N.W.2d 457
168 Neb. 49
Clarence GILLESPIE, Appellee,
v.
Michael HYNES, Appellant,
Impleaded with Henrietta Hynes et al., Appellees.
No. 34503.
Supreme Court of Nebraska.
March 6, 1959.
Syllabus by the Court

1. Where a party performs labor or furnishes materials for the improvement of a house pursuant to an agreement with the owner thereof, such party has 4 months from the completion of the work or the furnishing of the materials in which to file a mechanic's lien.

2. Where no equitable relief is granted in a suit to foreclose a mechanic's lien, a court of equity is without authority to enter a personal judgment in favor of the mechanic's lien claimant.

3. Where a mechanic's lien claimant fails to establish a lien in a suit to foreclose his lien, the issue of personal liability is a question to be determined as any other law action. In such a situation the trial court should retain the question of personal liability for trial as a law action.

4. Parsons Construction Co. v. Gifford, 129 Neb. 617, 262 N.W. 508; Robinson v. Dawson County Irr. Co., 142 Neb. 811, 8 N.W.2d 179; Gibson v. Koutsky-Brennan-Vana Co., 143 Neb. 326, 9 N.W.2d 298; Patterson [168 Neb. 50] v. Spelts Lumber Co., 166 Neb. 692, 90 N.W.2d 283, and cases of similar import are disapproved insofar as they conflict with the general rule that equity jurisdiction will not be retained to grant legal relief where no right to equitable relief is established.

McCarthy & Kneifl, South Sioux City, for appellant.

Leamer & Graham, Norris G. Leamer, South Sioux City, for appellee Gillespie.

Page 458

Cecil W. Orton, South Sioux City, for appellee Hynes.

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

CARTER, Justice.

The plaintiff brought this action to foreclose a mechanic's lien on Lot 19 and the east 8 feet of Lot 18, Block 32, Joy Place, an addition to South Sioux City, Nebraska, in the amount of $745. The trial court found that no lien existed and entered a personal judgment against the defendants Michael Hynes and Henrietta Hynes for $848.05 with interest and costs. The defendant Michael Hynes appealed.

The evidence shows that plaintiff was engaged in the plumbing and heating business. Hynes was moving a house onto the real estate involved here. Hynes inquired of plaintiff about the cost of heating and plumbing. The price of $1,250 was agreed upon. Plaintiff commenced the work during the first week in May 1953.

On November 15, 1953, Michael and Henrietta Hynes entered into a contract to sell the property to Raymond A. and Monica R. Bradish. Because of the work remaining to be done on the property the contract provided: 'All work and material shall be completed and furnished in the dwelling house on said premises by first party. Party of second part to furnish water pipes, water heater and furnace complete, and install the same at their own expense.' During the negotiations[168 Neb. 51] for the sale of the property Hynes discussed the matter with the plaintiff and this resulted in an agreement that plaintiff would complete the work, except that which Bradish agreed to do by the terms of his contract of purchase, for the sum of $700. The evidence is clear that all of the heating and plumbing work within the agreement between Hynes and the plaintiff was completed in December 1953. No other work was performed by the plaintiff under the plumbing and heating contract with Hynes that would extend the time for filing a mechanic's lien beyond April 1954. Plaintiff filed a mechanic's lien on August 25, 1954. The claim of lien was not filed within 4 months as required by section 52-103, R.R.S.1943, and consequently the trial court properly held that plaintiff had no enforcible lien against the property.

The defendant Hynes contends that the trial court, after holding that plaintiff had no enforcible lien, was without authority to enter a personal judgment against him. Hynes relies upon the principle announced in Reynolds v. Warner, 128 Neb. 304, 258 N.W. 462, 465, 97 A.L.R. 1128, which states: 'When the trial court determined that the interveners were not entitled to equitable relief, the court was without power to determine the legal action without the intervention of a jury. It is a general rule that, where a court in the exercise of its equity powers acquires jurisdiction for any purpose, its jurisdiction will continue for all purposes, and it will try all issues. (Citing cases.) But where there is no equitable relief granted, a court of equity will generally decline jurisdiction to enter a money judgment on a legal cause of action. This is especially true where such a course would operate to deprive a party of his constitutional right to a trial by jury. The constitutional right to a trial by jury cannot be defeated by an allegation of an equitable cause of action which does not exist. (Citing authorities.) The interveners were not entitled to equitable [168 Neb. 52] relief in this case, and the parties did not waive their right to a jury trial upon the question of the amount, if any, due interveners. In truth, they demanded a jury trial, and the court properly refused to try these issues without a jury, but dismissed the interveners' petition without prejudice to an action at law.'

In Massman Construction Co. v. Nebraska Workmen's Compensation Court, 141 Neb. 270, 3 N.W.2d 639, 643, this court said: 'The plaintiff having instituted and

Page 459

prosecuted this case in the district court as an equitable action, and, after a complete hearing as such was had thereon, now seeks strictly a common-law relief therein, which a court of equity in the exercise of its equitable powers may not grant, and which, if originally presented as a case for original relief, such court, as a court of equity, would have no jurisdiction to entertain. It would seem within the reasons of the rule announced by the supreme appellate court of New York, as follows: 'The opinion in this court, in Mann v. Fairchild, (2 Keyes 106, 111 et seq., 41 N.Y. 106), is that 'if a party brings an equitable action even now, when the same court administers both systems of law and equity, the party must maintain his equitable action upon equitable grounds or fail, even though he may prove a good cause of action at law on the trial.'''

The foregoing cases appear to state the general rule in equitable actions. A recognized text authority states the general rule to be: 'The rule considered in the preceding sections that, where the equitable jurisdiction of a court is once brought into action in a proper case, the court will retain jurisdiction of the parties and the subject matter in order to do complete justice to all concerned, even in some instances to the extent of enforcing purely legal rights, applies as a general rule only when the court retains the original case in order to grant some substantial equitable relief. Where the bill on its face discloses no equitable ground of jurisdiction, no relief whatever can be granted where the courts [168 Neb. 53] or the procedure in law and in equity are distinct, and, even where the bill states a case entitling complaint to equitable relief, if the proof fails to establish the averments of the bill in that respect the court is without jurisdiction to proceed further and determine rights that are properly cognizable in a court of law. In other words, equitable rights must be both averred and proved before purely legal rights will be determined by a court of equity.' 30 C.J.S., Equity, § 73, p. 427.

The general rule is stated in 19 Am.Jur., Equity, § 132, p. 132, as follows: 'The rule which permits the court of chancery to retain jurisdiction of litigation and finally dispose thereof is limited in its application to cases in which equitable relief has been administered pursuant to the prayer of the bill or in which the jurisdiction of the court has been rightfully invoked. If the facts which are relied on to sustain equity jurisdiction fail of establishment, the court may not retain the case for the purpose of administering incidental relief. It is said that an equitable right must be both averred and proved as a prerequisite to the determination of adjudication of a purely legal right. The prevailing view is that where jurisdiction has not been established, the court may not award damages or enter any decree except for costs. If the rule otherwise, it has been argued, a litigant, by a pretended claim to equitable relief, might deprive his opponent of advantages incident to an action at law--for example the constitutional right of trial by jury.'

Cases from other jurisdictions supporting this principle are legion. Some of them are Gogebic Auto Co., Inc. v. Gogebic County Board of Road Commissioners, 292 Mich. 536, 290 N.W. 898; Gregory v. Merchants State Bank, 23 Tenn.App. 567, 135 S.W.2d 465; Wasatch Oil Refining Co. v. Wade, 92 Utah 50, 63 P.2d 1070; Carlsbad Mfg. Co. v. Kelley, 84 W.Va. 190, 100 S.E. 65; Chicago R. I. & P. Ry. Co. v. State Highway Commission, 322 Mo. 419, 17 S.W.2d 535; Oregon Growers' Co-Operative Ass'n v. Riddle, 116 Or. 562, 241 P. 1011; Illinois [168 Neb. 54] Minerals Co. v. Miller, 327 Ill.App. 596, 65 N.E.2d 44.

There appears to be a greater divergence of legal authority on the question of the right of the court to grant a personal judgment in a mechanic's lien foreclosure where no equitable right is established. We point out that the mechanic's lien statute provides benefits to the holders of mechanic's liens. One having no lien can claim no rights under it. Consequently one who claims a mechanic's lien and fails to establish

Page 460

it is in no better position than if the mechanic's lien statute did not exist.

We adhere to the rule announced in Reynolds v. Warner, supra, and the authorities cited in support of it. A holding to the contrary would operate to deprive a party of his constitutional right to a trial by jury.

The plaintiff contends...

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8 practice notes
  • Wischmann v. Raikes, No. 34368
    • United States
    • Supreme Court of Nebraska
    • June 26, 1959
    ...right of trial by jury so vigorously asserted, and as I saw it unduly extended in scope by the court, in Gillespie v. Hynes, 168 Neb. 49, 95 N.W.2d 457. There the court held that where a litigant invoked an equitable remedy (now merely a civil remedy), and a claim for a money judgment was a......
  • Welch v. Welch, No. S-92-883
    • United States
    • Supreme Court of Nebraska
    • July 22, 1994
    ...supra; Patterson v. Spelts Lumber Co., 166 Neb. 692, 90 N.W.2d 283 [246 Neb. 453] (1958), overruled on other grounds, Gillespie v. Hynes, 168 Neb. 49, 95 N.W.2d 457 (1959). Interest does not accrue until the debt becomes due. See, Dryden, supra (interest on installment payment accrues when ......
  • Frontier Properties Corp. v. Swanberg, No. 91-585
    • United States
    • United States State Supreme Court of Iowa
    • June 17, 1992
    ...with ordinary remedies."); contra Wise v. Jerome, 5 Ill.App.2d 214, 222, 125 N.E.2d 292, 297 (1955) (per curiam); Gillespie v. Hynes, 168 Neb. 49, 50-56, 95 N.W.2d 457, 458-60 (1959), overruled on other grounds, Hull v. Bahensky, 196 Neb. 648, 244 N.W.2d 293 We hold that the remedy provided......
  • Jourdon v. Commonwealth Co., No. 34626
    • United States
    • Supreme Court of Nebraska
    • December 24, 1959
    ...or [169 Neb. 491] fail, even though he may prove a good cause of action at law on the trial.' * * *"' See, also, Gillespie v. Hynes, 168 Neb. 49, 95 N.W.2d This court has frequently and consistently maintained that if an adequate remedy exists at law, the litigant may not obtain relief in e......
  • Request a trial to view additional results
8 cases
  • Wischmann v. Raikes, No. 34368
    • United States
    • Supreme Court of Nebraska
    • June 26, 1959
    ...right of trial by jury so vigorously asserted, and as I saw it unduly extended in scope by the court, in Gillespie v. Hynes, 168 Neb. 49, 95 N.W.2d 457. There the court held that where a litigant invoked an equitable remedy (now merely a civil remedy), and a claim for a money judgment was a......
  • Welch v. Welch, No. S-92-883
    • United States
    • Supreme Court of Nebraska
    • July 22, 1994
    ...supra; Patterson v. Spelts Lumber Co., 166 Neb. 692, 90 N.W.2d 283 [246 Neb. 453] (1958), overruled on other grounds, Gillespie v. Hynes, 168 Neb. 49, 95 N.W.2d 457 (1959). Interest does not accrue until the debt becomes due. See, Dryden, supra (interest on installment payment accrues when ......
  • Frontier Properties Corp. v. Swanberg, No. 91-585
    • United States
    • United States State Supreme Court of Iowa
    • June 17, 1992
    ...with ordinary remedies."); contra Wise v. Jerome, 5 Ill.App.2d 214, 222, 125 N.E.2d 292, 297 (1955) (per curiam); Gillespie v. Hynes, 168 Neb. 49, 50-56, 95 N.W.2d 457, 458-60 (1959), overruled on other grounds, Hull v. Bahensky, 196 Neb. 648, 244 N.W.2d 293 We hold that the remedy pro......
  • Jourdon v. Commonwealth Co., No. 34626
    • United States
    • Supreme Court of Nebraska
    • December 24, 1959
    ...or [169 Neb. 491] fail, even though he may prove a good cause of action at law on the trial.' * * *"' See, also, Gillespie v. Hynes, 168 Neb. 49, 95 N.W.2d This court has frequently and consistently maintained that if an adequate remedy exists at law, the litigant may not obtain relief......
  • Request a trial to view additional results

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