Mchale v. Maloney

• Decision Date: 04 February 1903
• Docket Number: 12,597
• Citation: 93 N.W. 677,67 Neb. 532
• Parties: ROBERT W. MCHALE, APPELLEE, v. WILLIAM F. MALONEY ET AL. APPELLANTS
• Court: Nebraska Supreme Court

93 N.W. 677

67 Neb. 532

ROBERT W. MCHALE, APPELLEE, v. WILLIAM F. MALONEY ET AL. APPELLANTS

No. 12,597

Supreme Court of Nebraska

February 4, 1903

APPEAL from the district court for Douglas county. Foreclosure of a mechanic's lien. Personal judgment below against appellants. Tried below before DICKINSON, J. Affirmed.

AFFIRMED.

Abraham L. Knabe, for appellants.

Charles S. Lobingier, Charles W. Haller, Martin Langdon, Lawrence Rath, Richard S. Horton, George W. Shields, Charles A. Goss L. D. Holmes and Jacob L. Kaley, contra.

DUFFIE C. AMES and ALBERT, CC. concur.

OPINION

DUFFIE, C.

This is an appeal from a decree foreclosing a mechanic's lien taken by William F. and Emma F. Maloney. The plaintiff entered into a written contract with William F. Maloney to furnish the material and do the brick and stone work necessary in the construction of a theatre building in the city of Omaha. The defendants Charles H. and Annie Downs and Carlotta C. Chrisman, are the owners of the premises on which the building is located, and, prior to the date of the plaintiff's contract with Maloney, had leased said ground to William F. and Emma F. Maloney for a term of eight years. The other defendants are parties who furnish material for the building, and filed liens against the same. The court found the amount due each of the claimants, entered judgment therefor, and establish a mechanic's lien in their favor against the leasehold estate of the Maloneys, decreed a foreclosure of the same and a sale of the leasehold estate in case the amount found due was not paid within a certain specified time. Appellants complain that the holders of mechanics' liens were allowed a personal judgment against them in addition to their decree of foreclosure. Meyers v. Le Poidevin, 9 Neb. 535, 4 N.W. 319, recognizes the practice of entering a personal judgment against a party personally liable for the debt on the foreclosure of a mechanic's lien, and that has been the rule, as we understand, since the statute giving the lien was enacted. Because of this long practice and the seeming concurrence of the profession in the view that the statute authorized and contemplated it, we should not feel inclined to disturb it at this time, even if it were a doubtful question.

It will be observed from the statement above made that William F. and Emma F. Maloney were the lessees of the premises on which the theatre was erected, and that the contract for the stone and brick work to be done by McHale was signed by William F alone. The appellants now insist that McHale is not entitled to a mechanic's lien against Emma F. Maloney, for the reason that the petition does not allege that McHale furnished any material or did any labor by virtue of a contract, either express or implied, with the said Emma F. Maloney. Our statute gives a lien to the laborer or material man "who shall perform any labor, or furnish any material * * * for the erection * * * of any * * * building * * * by virtue of a contract or agreement expressed or implied with the owner thereof or his agents."...