22 Neb. 681 | Neb. | 1888
This is an action to foreclose a mechanic’s lien upon certain real estate described in the petition, owned by Mrs. "Van Etten; Moyer claims for material furnished To1 one Hayden, a contractor in the erection of the defendant Van Etten’s dwelling, and French is a senior mortgagee. The amount claimed to be due the plaintiff for material furnished by him is the sum of $803.76, with interest. He also claims there is due him the sum of $17.07 upon the account of one Andrew L. Wiggins, and the sum of $18.87 on the account of Harvey S. Nutting.' He further claims to be due him the sum of $86 on the account of Rutón Gsanter & Co., and on the account of Nich. Spellman the sum of $72, and $24 on the account of one Wm. Klatt; $13.87 on the account of Hans Tams; $28.82 on the account of Jacob New; $30.05 on the account of Sullivan Bros.; $163.12 on the account of Sidney D. Crawford; $40.87 on the account of John Liibbe; $48 on the account of
The defendant in her answer denies that the plaintiff owns the claims above set forth, and alleges that the plaintiff is not the real party in interest. On the trial the court instructed the jury: “ It will not be necessary for you to determine whether the assignment was valid or not; but you will allow the amount due, if anything, on each particular claim the same as if sued on by the original party, and subject to the same defenses, if any, regardless of the alleged assignment.”
It is conceded that the assignments were merely formal to enable the plaintiff to bring the action for all, and that he is not the real party in interest.. In justification of this course, the plaintiff’s attorney cites Pomeroy on Remedial Rights and Remedies, section ■ 132. In all the cases cited by Mr. Pomeroy in support of his proposition, except two, the plaintiff had an interest in the proceeds resulting from the suit. It was not a case of an entire want of interest, but merely a defect of parties plaintiff. In such case it is well known that if one of the proper parties brings an action and no objection is made for defect of parties, he may maintain the action although others should be brought in, as where a debt is assigned as collateral security for a less sum than the value of the debt, the assignee may maintain an action on the security although the assignor having an interest in the surplus would be a proper party.
Section 29 of the code provides that, “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 32.”
The first answer filed by the defendant was to a great extent stricken out on motion. An amended answer was thereupon filed, the sixth and seventh counts of which were stricken out, and the sustaining of such motion is now assigned for error. Said counts are as follows: “ Said defendant, for a further defense in said action, alleges the facts to be that on or about the 10th day of September, 1883, she contracted with one David I. Hayden, a contractor and carpenter and joiner,, in said city of Omaha,
“ That in pursuance of said contract by and between said Hayden and said defendant, said Hayden commenced said work and employed one Nich. Spellman to do and perform the brick work specified in said contract, and he,
There are doubtless allegations in these counts which are immaterial, and probably had a proper motion been filed could have been stricken out, but a party is entitled to set up all the defenses he may have to an action. If where a defense is set up that material was furnished to a contractor for the erection of a building for the defendant, while the contract between the contractor and the person erecting the building will not prevent a recovery in a proper case for material furnished or labor performed upon the structure, yet the time in which the lien is to be filed is limited to sixty days, while if the contract is made with the
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.