Maloney v. Johnson-McLean Co.

• Decision Date: 13 July 1904
• Citation: 72 Neb. 340,100 N.W. 423
• Parties: MALONEY ET AL. v. JOHNSON-MCLEAN CO. ET AL.
• Court: Nebraska Supreme Court

72 Neb. 340

100 N.W. 423

MALONEY ET AL.

v.JOHNSON-MCLEAN CO. ET AL.^a1

Supreme Court of Nebraska.

July 13, 1904.

Syllabus by the Court.

1. An appeal bond in an action for the foreclosure of a mechanic's lien, in which a personal judgment has been rendered against the obligors, which is conditioned that the appellants will pay all condemnation money, judgment, and costs which may be found against him or them on the final determination of the cause in the Supreme Court, complies with the first subdivision of section 677 of the Code of Civil Procedure (Cobbey's Ann. St. 1903, § 1704), is based upon a sufficient consideration, and is valid.

2. The “condemnation money” mentioned in the conditions of a bond given under the first subdivision of section 677 of the Code of Civil Procedure (Cobbey's Ann. St. 1903, § 1704) is “found against the defendant” when the judgment of the district court appealed from is affirmed by this court.

Commissioners' Opinion. Error to District Court, Douglas County; Read, Judge.

Action by the Johnson-McLean Company and George Howard against William F. Maloney and others. Judgment for plaintiffs, and defendants bring error. Affirmed.G. W. Shields, for plaintiff in error.

C. S. Lobingier and J. L. Kaley, for defendants in error.

LETTON, C.

This is an action upon an appeal bond. The original action was brought in the district court of Douglas county by defendants in error to foreclose a mechanic's lien against William F. Maloney and Emma F. Maloney, plaintiffs in error. A judgment and decree were rendered therein against the plaintiffs in error, whereupon they filed an appeal bond with themselves as principals and Hans Peterson as surety, which appeal bond was conditioned as follows: “Now, therefore, the condition of this obligation is such that if the said William F. Maloney and Emma F. Maloney shall prosecute said appeal without delay and pay all condemnation money, judgment and costs which may be found against them on final determination of the cause in the Supreme Court, then this obligation shall be null and void, otherwise to remain in full force and effect.” The cause was appealed to this court and by it affirmed (McHale v. Maloney, 93 N. W. 677), and a mandate issued directing the district court to carry the judgment into effect. In the case at bar, judgment was rendered in the district court in favor of the obligees in the bond. It is argued by the plaintiffs in error, first, that the appeal bond was not a statutory bond, did not supersede anything, and was void for want of consideration; second, that the bond was conditioned to pay only such condemnation money, judgment, and costs as should be rendered by and in the Supreme Court, while the Supreme Court did not render any judgment, but simply affirmed the judgment of the lower court.

In the action to foreclose the mechanic's lien, a personal judgment was rendered against the plaintiffs in error. At the same time the decree found that their interest in the premises was a leasehold interest, and ordered that, in case the judgment was not paid within 20 days, an order of sale be issued to sell the leasehold interest and the buildings and improvements on the real estate to satisfy the debt. Under the system of pleading and practice which has prevailed in this state for many years with reference to the foreclosure of mechanics' liens, a plaintiff may in the same action pray for and receive a personal judgment against a defendant for any amount found to be due him from said defendant upon the contract between them under which the labor or material was furnished, and may also have a finding and decree adjudicating the...