Gillespie v. Hynes
Citation | 95 N.W.2d 457,168 Neb. 49 |
Decision Date | 06 March 1959 |
Docket Number | No. 34503,34503 |
Parties | Clarence GILLESPIE, Appellee, v. Michael HYNES, Appellant, Impleaded with Henrietta Hynes et al., Appellees. |
Court | Supreme Court of Nebraska |
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 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.
Cecil W. Orton, South Sioux City, for appellee Hynes.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
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: During the negotiations 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:
In Massman Construction Co. v. Nebraska Workmen's Compensation Court, 141 Neb. 270, 3 N.W.2d 639, 643, this court said: ' '
The foregoing cases appear to state the general rule in equitable actions. A recognized text authority states the general rule to be: 30 C.J.S., Equity, § 73, p. 427.
The general rule is stated in 19 Am.Jur., Equity, § 132, p. 132, as follows:
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 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 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 that a personal judgment in favor of a mechanic's lien claimant may be rendered although he fails to...
To continue reading
Request your trial-
Wischmann v. Raikes
...constitutional 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......
-
Welch v. Welch
...Cumming, supra; Patterson v. Spelts Lumber Co., 166 Neb. 692, 90 N.W.2d 283 (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 each i......
-
Frontier Properties Corp. v. Swanberg
...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 by I......
-
Greenhall Investments, L.L.C. v. Wiese Development Corporation
...952, 468 N.W.2d 377 (1991); First West Side Bank v. Hiddleston, 225 Neb. 563, 407 N.W.2d 170 (1987). See, also, Gillespie v. Hynes, 168 Neb. 49, 106-07, 95 N.W.2d 457, 486 (1959) ("`party may not be heard to complain of error which he has invited. . . . Error may not be assigned upon a ruli......