Gray v. Elbling

Decision Date28 September 1892
Citation35 Neb. 278,53 N.W. 68
PartiesGRAY v. ELBLING ET AL.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. Upon the facts shown by the record, it does not appear that there was an order extending the time to prepare a bill of exceptions or application for an extension of time. There was no authority, therefore, for the judge to sign the bill, and a motion to quash is well taken.

2. Upon the issues made by the pleadings, the plaintiff is entitled to judgment.

3. An answer, in effect, that the defendant is not indebted the full amount claimed in the petition, is not a denial of any fact on which the right to recover depends, and raises no issue.

Appeal from district court, Saunders county; MARSHALL, Judge.

Action by Fred W. Gray against George Elbling and others to foreclose a mechanic's lien. Judgment for defendants. Plaintiff appeals. Reversed.Frank Dean, for appellant.

G. W. Simpson, for appellees.

MAXWELL, C. J.

This action was brought by the plaintiff against George Elbling to foreclose a mechanic's lien on lots 9 and 10, in block 20, in the county addition to Wahoo. On the trial of the cause, the court found the issues in favor of the defendant, and dismissed the action. It appears from the affidavits on file that the action was submitted to the court in July, 1890, and taken under advisement; that on the 16th day of August of that year a decision was rendered. It is claimed on behalf of the plaintiff that the time in which to prepare a bill of exceptions was extended 40 days from the adjournment of the court sine die, and the affidavits of the plaintiff's attorney, and also of the clerk of the court, are filed in support of that contention. On the other hand, the defendant and his attorney both swear that there was no such extension of time. The district judge overruled the motion to correct the record to show such extension, in effect holding that no order extending the time had been made. He signed the bill of exceptions, however, on the 8th day of October, 1890, and within the time in which he was authorized to grant an extension of time, and sign the bill. It would seem to be proper, where any reasonable excuse is given for the failure to present the bill within the time limited by the order of the court, but within the limit fixed by law to which it may be extended, for the judge to make an order extending the time, and thereupon sign the bill if correct, and, if he refused to extend the time, to refuse also to sign the bill. Such refusal would make a direct issue as to the right of the party presenting the bill to have the same authenticated without the delay and expense incident to docketing the cause in this court, to be here determined whether or not the judge had authority to sign the bill. If such authority existed, the manner of its exercise ordinarily could not be called in question. The law in relation to the preparation and signing of bills of exceptions is remedial in its nature, and should be liberally construed. This rule prevails in some of the common-law states, and is fundamental under the Code. The judge, by overruling the motion to enter the alleged order extending the time to 40 days from the rising of the court, in effect held that no such order had been made, and it does not appear that there was any cause whatever for the delay. The bill was signed, therefore, without authority, and the motion to quash the same is sustained.

On the face of the pleadings, however, it is apparent that the judgment is wrong, and cannot be sustained. The petition is as follows, omitting the title: “The plaintiff complains of the defendant George Elbling, for that on or about the 21st day of April, 1887, plaintiff entered into a verbal contract with the defendant George Elbling to furnish to him building material for the erection of a dwelling house on lots 9 and 10, in block 20, county addition to the city of Wahoo, Saunders county, state of Nebraska. In pursuance of said contract, plaintiff furnished to said defendant George Elbling building material consisting of doors, windows, shingles, lumber, lime, etc., an itemized account of the same, with credits and offsets, being set out in the mechanic's lien filed and recorded in the clerk's office in said county, and a copy of which is attached hereto, and made a part hereof, for the erection of said dwelling house; said material being furnished on and between the 21st day of April, 1887, and the 8th day of July, 1887, amounting to the sum of $311.00. That on the 20th day of April, 1887, said defendant George Elbling paid to said plaintiff the sum of $60.00, and on the 7th day of May, 1887, said defendant George Elbling returned windows, and for which said plaintiff gave him credit for $16.20, and on the 18th day of May for shingles returned said plaintiff gave him, said George Elbling, credit for 81 cents, amounting in the aggregate to the sum of $77.01, leaving a balance due in favor of said plaintiff amounting to the sum of $233.99. The defendant George Elbling, at the time plaintiff furnished said material, was the owner in fee of said lot. That on the 8th day of November, 1887, and within four months from the time of furnishing said material, the plaintiff made an itemized account in writing of said material furnished the defendant George Elbling, under said contract, together with all credits and offsets, and, after making oath thereto as required by law, filed the same in the clerk's office of Saunders county, and claimed a mechanic's lien therefor upon said lots, and the buildings thereon, for the sum of $233.99, with interest at 10 per cent. per annum, from the 8th day of November, 1887. The sum of $233.99, with interest at 10 per cent....

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2 cases
  • Ames v. Parrott
    • United States
    • Nebraska Supreme Court
    • May 22, 1901
    ...be consistent with 52 months' service instead of the 52 2/3 alleged, and in this respect is comparable to the answer in Gray v. Elbling, 35 Neb. 278, 53 N. W. 68. But the petition alleges also a contract to pay a stipulated compensation for one year, and a subsequent extension of said contr......
  • Ames v. Parrott
    • United States
    • Nebraska Supreme Court
    • May 22, 1901
    ...months' service instead of the fifty-two and two-thirds alleged, and in this respect is comparable to the answer in Gray v. Elbling, 35 Neb. 278, 53 N.W. 68. But petition alleges also a contract to pay a stipulated compensation for one year and a subsequent extension of said contract to the......

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