Hays v. Mercier

• Citation: 35 N.W. 894,22 Neb. 656
• Parties: HAYS v. MERCIER ET AL.
• Decision Date: 05 January 1888
• Court: Supreme Court of Nebraska

22 Neb. 656

35 N.W. 894

HAYS

v.MERCIER ET AL.

Supreme Court of Nebraska.

January 5, 1888.

Syllabus by the Court.

Where plaintiff filed his petition in equity in the district court, and to which defendant presented a demurrer, the ground for demurrer being that the petition did not state facts sufficient to constitute a cause of action, and such demurrer being sustained, it was held that neither a motion for a new trial, nor bill of exceptions, was necessary in order to obtain a review in the supreme court by appeal.

An affidavit for a mechanic's lien in the following form: “ State of Nebraska, Chase County--ss.: J. P. Hays, being first duly sworn, on his oath says that the foregoing account of work, labor, and skill is a true and correct account of the work, labor, and skill done and performed and furnished by this affiant for the said Thomas Mercier, under a verbal contract for the erection of a store-house building for the said Thomas Mercier upon the following described lot, piece, or parcel of land, viz.: Lot number one, in block number four, in the town of Imperial, Chase county, Nebraska, according to the recorded plat and survey of said town, now of record in the office of the county clerk of said county. And this affiant further says that he has, and does hereby claim, a lien on the said premises, as above described, for the full amount of his said account for labor, work, and skill, to-wit, the sum of $161.50, together with interest thereon at the rate of 7 per cent. per annum from this date; and further affiant says not:” held sufficient, when assailed by demurrer.

Appeal from district court, Chase county; COCHRANE, Judge.

Action by Joseph P. Hays to foreclose a mechanic's lien. A demurrer to the petition was sustained, and plaintiff appeals.C. W. Meeker and E. W. Metcalfe, for appellant.

H. F. Wilson and J. Byron Jennings, for appellees.

REESE, C. J.

This action was commenced in the district court of Chase county, and was for the foreclosure of a mechanic's lien. The action is against Thomas Mercier, as owner of the property, and Mary J. Mercier, John M. H. Hooker, and Hannibal H. Whitman are made defendants, as owners of some interest in the property. Hooker filed his separate answer, setting up a mechanic's lien as subcontractor. Thomas Mercier and Mary J. Mercier filed a general demurrer to the petition. The demurrer was sustained, and plaintiff's cause dismissed, from which he appeals to this court.

Since the filing of the case in the supreme court, Thomas and Mary Mercier appeared especially, and filed their objections to the jurisdiction of the court. These objections are based upon four alleged causes: “ First, no exception was taken to the decision of the court in which the cause was tried at the time the judgment was rendered, nor at any time; second, no bill of exceptions is on file in this cause; third, no relief was asked by appellant in the district court; fourth, no motion for a new trial was filed in the district court.” As to the first objection, that no exception was taken to the decision of the court, we find it is not sustained by the record, from which we quote the following: “This cause having been submitted to the court on the demurrer to the petition, on consideration thereof the court does sustain the same, so far as it relates to the mechanic's lien; and the plaintiff not desiring to prove his claim as to the account set up in the said petition, and not desiring to amend his petition, it is ordered by the court that said action be dismissed, and that defendant recover from the plaintiff his costs herein expended, and taxed at $7.33,--to all of which ruling of the court in sustaining said demurrer plaintiff then and thereupon duly excepted.” This was sufficient. As to the second ground of objection, that there is no bill of exceptions filed in this case, it must be sufficient to say that none is required. The third ground of objection is not sustained by the record. It can serve no important purpose to quote the petition at length, but we find in it the allegation of the essential facts; the usual prayer for an accounting; and that “the amount found due be declared a lien upon the property described; in case the amount found due is not paid within a time to be fixed by the court, that the premises be sold, and the...