This is the second appearance of this cause in this court. The opinion on the former appeal is reported in 44 Neb. 244. The Badger Lumber Company, in pursuance of a contract entered into with Charles M. Cadwallader, furnished lumber and other materials for the erection of eight dwelling-houses on lots 1, 2, 3, 10, 11, and 12, block 3, Avondale Addition to the city of Lincoln. A verified account of said lumber and materials was duly filed in the office of the register of deeds of Lancaster county, claiming a mechanic’s lien upon said premises for $492.18, the balance remaining unpaid on said account. Subsequently, this suit was instituted to foreclose plain
It is now argued that the first or original decree rendered herein by the district court is res judicata against the Badger Lumber Company as to all the property in controversy upon which it was denied a lien by that decree, since plaintiff did not prosecute an appeal from the decision rendered against it. The principle is well established that on appeal to this court the appellee can ordinarily obtain no other or different relief from that awarded him in the trial court. But that doctrine, which is so strenuously invoked by the appellants, is not applicable here, since this court on the former appeal granted no relief to the plaintiff, but on consideration of the appeal prosecuted by defendants the decree in favor of the Badger Lumber Company was reversed and the cause
It insisted that the second or last decree was rendered in violation of the former decision and mandate of this court. In the previous opinion it -was decided that plaintiff was not entitled to a mechanic’s lien on a part of the property on which the improvements were erected for their entire costs, but that the lien might be upon all the property for the entire balance due. That decision was not violated by the court below. It found and adjudicated that plaintiff was entitled to a lien on all the lots, a first lien on certain parts, and a second or junior lien on the remainder, and that the portion of the premises on which plaintiff held a second lien had been sold under the prior mortgage lien of Sarah A. Rogers, which cut out and foreclosed plaintiff’s rights or interest therein. A decree was awarded plaintiff on the second trial on the entire property on which the improvements were erected, except the portion which the proofs disclose liad been already sold under the prior mortgage lien. This was a substantial compliance with our former decision. Plaintiff was entitled to a general lien on all the lots for the balance due it for materials, and it would be inequitable and unjust to hold that such general lien is defeated by the foreclosure of a prior lien on a portion of the premises. Plaintiff’s lien is valid and binding on the remainder of the lots for the entire balance of the unpaid part of its claim. The decree is sustained by ample evidence.
AFFIRMED.