May Plumbing Co. v. Shaver
| Decision Date | 10 November 1967 |
| Docket Number | No. 36568,36568 |
| Citation | 182 Neb. 251,153 N.W.2d 911 |
| Parties | MAY PLUMBING COMPANY, a Partnership, Appellee, v. William SHAVER et al., Appellees, Impleaded with Catherine M. Shaver, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. The object of the mechanic's lien law being to secure the claims of those who have made improvements within its terms, it should receive a liberal interpretation to give full effect to its provisions.
2. A party who stands on a general demurrer to a pleading thereby admits the material facts averred, and must take all the consequences which result from such admission.
3. A petition challenged by demurrer charges what by reasonable and fair intendment may be implied from the facts stated.
4. The word 'owner' as used in our mechanic's lien law is not limited in its meaning to an owner of the fee, but means the owner of any interest in the lands and includes every character of title, whether legal or equitable, fee simple, or leasehold.
5. So long as the court can see that the identity of the cause of action is preserved, the particular allegations of the petition may be changed and others added in order to cure imperfections and mistakes in the matter of stating the plaintiff's case.
Luebs, Tracy & Huebner, Grand Island, for appellant.
Wagner & Grimminger, Grand Island, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
Defendant Catherine M. Shaver has appealed from a judgment foreclosing a mechanic's lien against her. The lien was for labor and materials furnished by the plaintiff for a residence of defendant Catherine Shaver and her husband. The residence was located on a leasehold. The petition to foreclose the mechanic's lien specifically alleged that the labor and materials were ordered by and placed on the premises at the direction of the defendant William Shaver. The petition for foreclosure of the lien named both Shavers as defendants, as well as several other parties, including lessors and mortgagees, and summons were issued and served on all defendants within the statutory 2-year period. However, William Shaver was served by leaving the summons at his usual place of residence. A special appearance was filed for both Catherine Shaver and William Shaver 4 days after the filing of the petition for foreclosure. Some years later, the special appearance of William Shaver was sustained on a showing that he was a nonresident of the State of Nebraska at the time of purported service of summons on him, but the special appearance of Catherine Shaver was overruled. Thereafter, Catherine Shaver filed a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action against her. That demurrer was overruled in 1965. On the same day, plaintiff's motion to amend the petition by adding the name 'Catherine M. Shaver' to that of her husband as a contracting party was overruled. An alias summons was served on William Shaver in 1966 when he was again a resident of Nebraska, but a special appearance was again sustained and the action was dismissed as to him. Trial was had in September 1966. Catherine Shaver elected to stand on her demurrer. Plaintiff introduced evidence and rested. The court overruled plaintiff's motion to amend the petition to conform to the proof and entered judgment against Catherine Shaver for $3,584.34 with interest, and foreclosed the mechanic's lien against her.
Catherine Shaver contends that the court did not have jurisdiction since it obtained no personal jurisdiction over William Shaver; that any mechanic's lien expired 2 years after the lien was filed for the same reason; that the petition does not state facts sufficient to constitute a cause of action against her; and also that the judgment is not supported by competent evidence of ownership in the defendant Catherine Shaver. Her basic premise is that the action here to foreclose a mechanic's lien should be treated as an action in personam against William Shaver alone because the affidavit filed with the original lien claim designated him as owner, but the petition for foreclosure did not in specific terms allege the exact nature and extent of any ownership of the property. We cannot agree.
The contentions, however, necessitate a rather full review of the facts. The unexplained delay of several years has complicated the matter unduly, but we do not attempt to place specific responsibility for it.
The affidavit attached to the initial mechanic's lien filed in 1955 designated William Shaver as being the debtor and identified William Shaver as an owner. We have held that if the owner of real estate is not named in the affidavit the omission is not fatal. Wakefield v. Latey, 39 Neb. 285, 57 N.W. 1002.
The petition for foreclosure identified the labor and materials as used in the construction of a dwelling house located on specifically described lots known as part of Kuester's Lake in Hall County. It also alleged that William Shaver ordered the material and labor; that they were furnished at the direction of the defendant William Shaver in the construction of the dwelling house; that they had not been paid for; and that no action at law was pending. The petition also alleged that on June 21, 1957, some 4 1/2 months prior, a divorce decree was entered in a divorce proceeding between the defendants Catherine and William Shaver, and that they remained husband and wife pending the decree becoming final. The petition then alleged that the parties Catherine Shaver and William H. Shaver were joined as husband and wife and parties defendant.
In addition, the petition specifically alleged that William and Catherine Shaver had made, executed, and delivered a certain mortgage on the specific lots described and that both of them had also executed and delivered an assignment of money to the mortgagee in an amount equal to or greater than plaintiff's lien. The petition also specifically requested the court to order the money held by the mortgagee under the assignment paid to the clerk of the court. The petition also...
To continue reading
Request your trial
-
Lincoln Lumber Co. v. Lancaster
...them as contracting owners." Brief for appellants at 13. In support of this contention, the Lancasters cite May Plumbing Co. v. Shaver, 182 Neb. 251, 256, 153 N.W.2d 911, 915 (1967): "`[O]wner' as used in our mechanic's lien law is not limited in its meaning to an owner of the fee, but mean......
-
Abbott v. Abbott, 37321
...Klein, 176 Neb. 245, 125 N.W.2d 669 (1964); Horn's Crane Service v. Prior, 182 Neb. 94, 152 N.W.2d 421 (1967); May Plumbing Co. v. Shaver, 182 Neb. 251, 153 N.W.2d 911 (1967); J. R. Watkins Co. v. Wiley, 182 Neb. 242, 153 N.W.2d 871 It is true that the authorities and the cases are diverse ......
-
Traudt v. Nebraska Public Power Dist.
...challenged by demurrer charges what by reasonable and fair intendment may be implied from the facts stated. May Plumbing Co. v. Shaver, 182 Neb. 251, 153 N.W.2d 911. The ruling of the District Court in sustaining a demurrer must be determined in the light of those requirements. See Hester v......
-
Midlands Rental & Machinery, Inc. v. Christensen Ltd. Partnership
...the lands and includes every character of title, whether legal or equitable, fee simple, or leasehold." May Plumbing Co. v. Shaver, 182 Neb. 251, 256, 153 N.W.2d 911, 915 (1967). amount of a lien to the amount the prime contractor owes the subcontractor when notice of the lien is received, ......