Meade Plumbing, Heating & Lighting Company v. Irwin

• Decision Date: 04 April 1907
• Citation: 111 N.W. 636,77 Neb. 391
• Parties: MEADE PLUMBING, HEATING & LIGHTING COMPANY ET AL., APPELLANTS, v. JAMES M. IRWIN ET AL., APPELLEES
• Court: Nebraska Supreme Court

111 N.W. 636

77 Neb. 391

MEADE PLUMBING, HEATING & LIGHTING COMPANY ET AL., APPELLANTS, v. JAMES M. IRWIN ET AL., APPELLEES

Supreme Court of Nebraska

April 4, 1907

Reversed and remanded, with directions.

OPINION

BARNES, J.

The Meade Plumbing, Heating & Lighting Company et. al. brought this action in the district court against James M. Irwin, his sister, Mrs. Emma McGahey, and others to recover the sum of $ 248.26, and foreclose a mechanic's lien on a certain house and lot in the city of Lincoln, owned by said Irwin. A judgment was rendered in favor of the plaintiffs for the sum of $ 125, and costs, against Irwin and Mrs. McGahey, and the plaintiffs had a decree for a foreclosure as prayed. From that judgment and decree the plaintiffs appealed to this court, and a former hearing resulted in an affirmance of the decree, except as to costs. As to that matter the district court was directed to tax all of the costs to the defendants. Our former opinion, ante, p. 385, contains a full statement of the facts, hence no further statement is required. It was there stated that the plaintiffs were neither entitled to a judgment against Irwin, nor a decree of foreclosure against his property, but as there was nothing in the record showing a cross-appeal, and as his brief assailing the decree was not filed in due season, he was not entitled to have the decree reviewed, and therein lies the error of our former judgment.

It appears that the transcript in this case was filed June 21 1905. The plaintiffs filed their brief on January 27, 1906. Defendants filed their brief and cross-appeal March 7, 1906. Plaintiffs filed their reply on April 14, and the hearing was had in its regular order on April 17 of the same year. No objection as to time was made by plaintiffs when defendants' brief was served and filed, and no motion was made to strike because the brief had been filed out of time. So the plaintiffs cannot now challenge the defendants' right to assail the decree. While both parties were delinquent, in point of time, as to filing briefs, yet we are satisfied that under the circumstances, as detailed above, the defendants filed their brief assailing the decree in due season. Hahn v. Bonacum, 76 Neb 837, 107 N.W. 1001; Goos v. Goos, 57 Neb. 294, 77 N.W. 687; McDonald v. Buckstaff, 56 Neb. 88, 76 N.W 476. The record discloses that the defendants' brief was entitled "Appellees' Brief on Cross-Appeal," and from an examination of its contents it further appears that the decree was assailed, and affirmative relief was asked for thereby. That this amounted to the taking or prosecution of a cross-appeal seems clear under our system of appeals in equity cases in force before the statute of 1905 regulating appeals, went into effect. The plaintiffs, by filing the transcript and the whole record in this court, opened the decree,...