Hoagland v. Van Etten

• Decision Date: 27 January 1891
• Citation: 47 N.W. 920,31 Neb. 292
• Parties: HOAGLAND v. VAN ETTEN ET AL.
• Court: Nebraska Supreme Court

31 Neb. 292

47 N.W. 920

HOAGLAND

v.VAN ETTEN ET AL.

Supreme Court of Nebraska.

Jan. 27, 1891.

Syllabus by the Court.

1. One H. was permitted to file an amended petition upon payment of costs. He paid a large amount of costs, and filed an amended petition, on which the case was tried and a decree rendered. Held, that as the court below had deemed the order of the court as to payment of costs satisfied by trying the cause and rendering a decree, that if more costs were still due the remedy of the defendant was a motion to retax, and that, should additional costs still be due from the plaintiff, it would not be cause for the reversal of the judgment.

2. One H. brought an action to foreclose a mechanic's lien, and, there being a number of small liens against the same property, they were assigned to him, and an action brought thereon in his own name. Held, that as the assignment of such liens was in the interest of economy, not only on behalf of the lienholders, but also on behalf of the defendant, therefore an order of the court continuing such lien in force, and permitting the plaintiff to acquire the beneficial interest as well as the legal title, would be sustained.

3. Where the proof is conflicting, and of such a character as to leave it uncertain what the facts are, the finding of the trial court ordinarily will not be disturbed.

4. The judgment is in conformity to the proof, and there is no material error in the record.

Appeal from district court, Douglas county; WAKELEY, Judge.D. Van Etten, for appellant.

Switzler & McIntosh, for appellees.

MAXWELL, J.

This is an action to foreclose a mechanic's lien. On the trial of the cause the court rendered a decree as follows:

“This cause came on to be heard heretofore during this term, and both parties appearing by counsel, and a jury being in open court waived, the case was tried to the court, and after the introduction of the evidence on behalf of the parties, and argument of counsel, the same was taken under advisement. Upon consideration of all the pleadings and evidence in the case and arguments of counsel, the court finds on the issues joined in favor of the plaintiff. That there is due the plaintiff in this case, on his individual account set forth in his petition, the sum of $1,061.79, and that on the 16th day of February, 1884, the plaintiff made an account in writing of the items set forth in said petition, and, after having the same properly sworn to, filed the same in the county clerk's office of Douglas county, on the day last aforesaid, and within sixty days from the time of the furnishing of said material, and the same is duly recorded therein. That for the purposes of securing a lien, and within the intent and meaning of section 1 of the mechanic's lien act, all the said material was furnished to defendant Emma L. Van Etten by virtue of an express agreement, and that her husband, David Van Etten, was her authorized agent in the premises. That for the material furnished after November 8, 1883, the defendant Emma L. Van Etten is personally liable. That the statement, sworn to and filed as above stated, is a mechanic's lien upon the dwelling-house on the following described premises, and on the land itself, and its appurtenances, and upon the interest of Emma L. Van Etten in and to the same, that is to say, all that piece and parcel of land commencing at a point on the south side of Harney street, eighty-one feet west of the west line of C. W. Keyes' land, running west forty feet; thence south one hundred and twenty feet; thence east forty feet; thence north one hundred feet, to the place of beginning; and being located on the south side of Harney street, on lot nine, Capitol addition to the city of Omaha; and that the plaintiff is entitled to have said lien enforced; that of said material $495.27 thereof was delivered on or before November 8, 1883, and $308.49 thereof was delivered after said date; and for the last-named amount a personal judgment is decreed and adjudged against the defendant Emma L. Van Etten, with interest from February 16, 1884. That material and labor in the following sums and amounts were furnished to the defendant Mrs. Emma L. Van Etten by the parties named, and were used by her in the construction of said building on said premises, to-wit:

+---------------------------+
                ¦James Morton & Son ¦$ 58 83¦
                +-------------------+-------¦
                ¦Sidney D. Crawford ¦163 12 ¦
                +-------------------+-------¦
                ¦William Klatt      ¦24 00  ¦
                +-------------------+-------¦
                ¦Hans Tams          ¦13 87  ¦
                +-------------------+-------¦
                ¦Jacob New          ¦28 82  ¦
                +-------------------+-------¦
                ¦John Libbie        ¦40 87  ¦
                +-------------------+-------¦
                ¦Abner C. Swilley   ¦48 00  ¦
                +-------------------+-------¦
                ¦Nels J. Sonder     ¦21 41  ¦
                +-------------------+-------¦
                ¦Andrew L. Wiggins  ¦17 07  ¦
                +---------------------------+
                

That material of the value of $86.00 was furnished by Anton Gsantner & Co. to Nichols Spellman as subcontractor for David I. Hayden, which was used in constructing said building, and that defendant Moyer furnished to David I. Hayden, contractor, material for use in said building for which there is a balance due of $30.15. That each of said above-named parties, within sixty days from the furnishing of said material and labor, caused a properly sworn statement of the items thereof to be filed of record with the county clerk of Douglas county, and the same are duly recorded therein, and said statements are mechanics' liens upon the property described above, and that this plaintiff became and is the owner of said claims (except that of Moyer) and liens by virtue of having bought the same by complying with the authority given by the supreme court, and is entitled to have said liens enforced. That there is due the plaintiff on the same the face of said claims, with interest to September 17, 1888, being in the following sums, viz.:

+--------------------------------------------------+
                ¦On lien of Morton & Son                 ¦$ 77 55  ¦
                +----------------------------------------+---------¦
                ¦On lien of S. D. Crawford               ¦215 96   ¦
                +----------------------------------------+---------¦
                ¦On lien of Wm. Klatt                    ¦31 91    ¦
                +----------------------------------------+---------¦
                ¦On lien of Hans Tams                    ¦18 45    ¦
                +----------------------------------------+---------¦
                ¦On lien of Jacob New                    ¦38 33    ¦
                +----------------------------------------+---------¦
                ¦On lien of John Libbie                  ¦54 34    ¦
                +----------------------------------------+---------¦
                ¦On lien of Abner C. Swilley             ¦62 99    ¦
                +----------------------------------------+---------¦
                ¦On lien of N. J. Sander                 ¦28 23    ¦
                +----------------------------------------+---------¦
                ¦On lien of A. L. Wiggins                ¦22 85    ¦
                +----------------------------------------+---------¦
                ¦On lien of Anton Gsanter & Co           ¦105 37   ¦
                +----------------------------------------+---------¦
                ¦There is also due on his individual lien¦1,061 79 ¦

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