Van Etten v. Kosters

• Decision Date: 27 January 1891
• Parties: VAN ETTEN v. KOSTERS.
• Court: Nebraska Supreme Court

31 Neb. 285

47 N.W. 916

VAN ETTEN

v.KOSTERS.

Supreme Court of Nebraska.

Jan. 27, 1891.

Syllabus by the Court.

1. Where affidavits or other evidence are used on the hearing on a motion for a change of venue in the district court, such evidence must be preserved in a bill of exceptions, to be available in the supreme court.

2. Where certain lienholders had assigned their liens to one H., who brought an action thereon in his own name, and obtained judgment, which judgment was afterwards reversed in the supreme court, and the cause remanded for further proceedings, whereupon one of the lienholders brought an action on his own account in his own name, held, that the judgment of the supreme court was not a bar to the action.

3. The evidence upon the material points being conflicting and nearly equally balanced, the judgment is affirmed.

Error to district court, Douglas county; HOPEWELL, Judge.D. Van Etten, for plaintiff in error.

Francis A. Brogan, for defendant in error.

MAXWELL, J.

This action was brought in the district court of Douglas county by the defendant in error against the plaintiff in error, the cause of action being set forth in the petition as follows:

“The plaintiff complains of the defendant for that at the time stated in the following account he furnished the defendant with the following materials and labor:

+-------------------------------------------------------------+
                ¦Emma L. Van Etten to Henry Kosters, Dr.                      ¦
                +-------------------------------------------------------------¦
                ¦1, 14x32. 2, 14x31.                                          ¦
                +-------------------------------------------------------------¦
                ¦March 22, 1884. To reglazing two lights of glass     ¦$ 2 75 ¦
                +-----------------------------------------------------+-------¦
                ¦April 24, 1884. To seventy yards oak graining, at 45c¦28 00  ¦
                +-----------------------------------------------------+-------¦
                ¦April 24, 1884. To 105 yds. walnut graining, at 45c  ¦47 25  ¦
                +-----------------------------------------------------+-------¦
                ¦April 26, 1884. To numbering transoms                ¦2 50   ¦
                +-----------------------------------------------------+-------¦
                ¦April 26, 1884. To painting house as per contract    ¦126 50 ¦
                +-----------------------------------------------------+-------¦
                ¦April 30, 1884. To kalsomining                       ¦6 00   ¦
                +-----------------------------------------------------+-------¦
                ¦                                                     ¦$213 00¦
                +-------------------------------------------------------------+
                

--which materials and labor expended were furnished the said defendant at her request, through the agent, David Van Etten. The prices affixed to the respective items in said account are the reasonable prices and value thereof, and said goods are of the aggregate of $213.00, no part of which has been paid. There is now due from the defendant to the plaintiff thereon the sum of $213.00, together with interest thereon at 7 per cent. per annum from May 1, 1884, for which, with costs of this action, the plaintiff prays judgment.”

The original copy of the petition filed in this court showed the fourth item to be but $26.50. The defendant in error, however, suggested diminution of the record, and a certified copy of the petition was thereupon sent by the clerk of the district court, and filed in this case, containing the items as above. To this petition Mrs. Van Etten filed an answer, in which she alleges “that on the 7th day of August, A. D. 1884, an action was commenced in the district...