53 Neb. 424 | Neb. | 1898
It appears that during the year 1894 M. F. Lamaster was the owner of lot 6, block 58, in the city of Lincoln, and William Barr owned the adjoining lot 5. On these lots stood a brick building, one-half on each lot, of which Barr owned the portion erected on his lot and Lamaster the part of the building which was on his lot. The building had two large rooms on the ground floor, one on each lot. There was a common stairway running up immediately over the division line to floors above, of which there were two, each divided into a number of rooms, and each
“First — That the said Barr and Lamaster are each the separate and several owners'of lots 5 and 6, and of their buildings thereon, but which buildings constitute one block, known as the Barr-Lamaster Block, the said'William Barr being the owner of lot 5 and the plaintiff being the owner of lot-6, in block 58, in the city of Lincoln.
“Second — That each building is furnished and provided with a' system of pipes and radiators, used for the purpose of supplying said buildings and thé different rooms thereof with heat by steam, but that the steam for both is supplied from one boiler.
“Third — That the furnace and boiler provided and used for generating steam are owned by the said plaintiff and the said William Barr in common, and that each of them have the right to the use of the same; and that the furnace and boiler have been provided for the joint use of both in furnishing steam and heat for said buildings, and that the rights of both in and to said furnace and boiler are equal.
“Fourth — That it is necessary for the accommodation of the owners and tenants of said building that during the winter season of the year some competent person be employed to operate said furnace and boiler.
*427 “Fifth — That the defendant C. C. Elliott is a capable engineer and is competent to operate said furnace and boiler, and has a certificate of qualification issued to him by competent authority of the city of Lincoln.
“Sixth — That the said C. C. Elliott was employed for the season of 1894-5 by William Barr to take charge of the said heating apparatus, and that such employment was with the knowledge and (originally) the consent of plaintiff, and that he has never been discharged by the act of both Barr and Lamaster, and that at the time of the commencement of this suit he was engaged in the discharge of the duties of his employment; that on the 22d day of September, 1894, the notice set out in plaintiff’s petition signed by plaintiff was caused to be served upon him by plaintiff.
“Seventh — That sufficient heat, has not been furnished the occupants of the Lamaster side of said block at all times, but the proof is unsatisfactory as to the cause of the failure or who was at fault.
“Eighth — -That the furnace and boiler are capable of furnishing siifficient heat for the block if they and the radiators are properly managed.
“Ninth — That the said defendant C. C. Elliott has wrongfully excluded plaintiff from exercising the necessary acts of ownership over said furnace and boiler and other portions of his property in the basement of the said building and has prevented him from entering therein and thereto, and that plaintiff should be permitted to have free access to the same.
“Tenth — That there is at present no necessity for the appointment of a receiver.
“conclusions at law.
“First — That as to the defendant William Barr this action should be dismissed.
“Second — That as to the defendant C. C. Elliott a perpetual injunction should be awarded restraining and enjoining him from interfering with or preventing plaintiff*428 from exercising acts of ownership over and having access.to his property, including the furnace and boiler and other property in - connection therewith or owned by plaintiff, but not to restrain the said Elliott from discharging his said duties as engineer of said building.
“Third — That the costs in this case should be equally divided between the plaintiff and the defendant O. O. Elliott, each one paying one-half.
“To all of which the plaintiff excepts, and to that part awarding an injunction against O. C. Elliott he excepts.”
For the appellants a motion was made for confirmation of the report of the referee and judgment in accordance therewith. To the report the appellep made many objections and urged exceptions. The court, on hearing of the motion for confirmation and the exceptions, overruled the exceptions to the fifth and seventh findings of fact and sustained the exception to the tenth and also sustained the exceptions to the first and third conclusions of law and as was stated in the decree, “In all other respects and in the fifth, sixth, and seventh findings of fact, the said referee’s report is by the court duly confirmed, as supported by the evidence and the law.” It was further stated in the decree: “From the evidence the court finds that between the plaintiff and defendant Barr exists a feeling of ill will and hostility that renders impossible any unity of action in the control and management of their joint property, the heating plant in the Barr-Lamaster Block, located on lots 5 and 6, block 58, in the city of Lincoln, and that for the proper use of said heating plant to warm the separate property of each, said Barr and said Lamaster, a necessity does now exist for the appointment of a receiver over their said joint property, the said heating plant.” A receiver was appointed to take charge of the heating apparatus, Elliott was reinstated in his position, the restraining order was vacated, and the costs of the cause, including fees of referee, were adjudged to be paid one-half by Lamaster and one-half by Barr. From the judgment Barr has appealed to this court.
In the district court there was a motion by Barr and Elliott that judgment be rendered on the findings of fact and conclusions of law, from which it may be said that said parties had nothing to urge against such a judgment being entered; and without an examination of any of the questions which might be presented relative to all portions of such a decree being warranted by the facts, no objections having been made other than have been settled herein, a decree will be entered in accordance with the conclusions announced in the report of the referee. It is, however, urged that relative to the costs the decree must remain as announced by the district court, inasmuch as the appellants presented in such court no motion to retax the costs. In the case of Burton v. State, 34 Neb. 125, in regard to a similar contention, it was stated: “It is urged by the county attorney in his brief that a motion to retax costs was necessary in order to give, plaintiff standing in this court. We cannot agree with this view. Ordinarily the taxing of costs is a clerical act performed by the clerk, and the presumption is that the action of the clerk has not been called to the attention of the court; hence this court will not, as a rule, review an order taxing costs until a motion to retax has been made and the trial court given an opportunity to correct the errors, if any have been made. In this case the court has considered the question of the liability of plaintiff in error and deliberately determined that he is liable for the costs of prosecution. Here the reason of the rule is wanting. It would be an idle and useless
Judgment of the district court reversed and judgment ordered as hereinbefore stated.
Judgment accordingly.