Wallace v. Flierschman

22 Neb. 203 | Neb. | 1887

Reese, J.

This action was for the enforcement of a mechanic’s lien. Plaintiff’ being unsuccessful in the district court, prosecutes error here. The petition was in the usual form. The answer contained averments to the effect that the building, for the construction of which the alleged indebtedness was made, was constructed by plaintiff and one Lehman, who were partners, and that the whole indebtedness had been paid. The district court found these allegations sustained by the proof. There seems to be no doubt but that the money due for the construction of the building has all been paid, but it appears that the principal part of it was paid to Lehman, who, defendant insists, was a partner of plaintiff in doing the work, while plaintiff contends that Lehman was not a partner, and was only entitled to collect such proportion of the contract price as the time worked by him sustained to the whole time engaged in the construction of the improvement.

We have carefully read all the testimony, and, while it is not so definite and direct on tlie part 'of defendant as might be desired, we are quite clear that there is enough to sustain the finding of the trial court. It could serve no good purpose to review the evidence at length. It must be sufficient to say that if the testimony of defendant was true — and of that the district court was the judge — it was sufficiently proven that the contract for the erection of her house was originally let to Lehman for the sum of $115, but plaintiff afterwards claimed that the price was too low, and it was increased to $130, and that the principal part of the money paid to Lehman was divided between him and plaintiff, the receipts therefor being given in the firm name of Lehman & Wallace. The finding, therefore, can not be molested.

After judgment plaintiff moved the court to order a re-taxation of the costs, and that they be separately taxed, as required by law. This motion was overruled. The judgment itself is correct in form, “That defendant recover her costs.” But, as is shown by the record, the clerk entered up all the costs in one general fee bill, without taxing them separately, as required by section 30 of chapter 28 of the Compiled Statutes.

The duty of the clerk is plain in this matter, and had the attention of the trial court been called to the fact we doubt not he would have directed the clerk to follow the statute, but it was not done, and as the matter was presented by the motion it should have arrested the attention both of the court and clerk. The result is, no doubt, an oversight, but it is erroneous, nevertheless.

The decree of the district court upon the merits of the cause is affirmed, but the order on the motion to require the clerk to separately tax the costs is reversed and the cause remanded, that the requirements of the statute may be complied with.

Judgment accokdingly.

The other judges concur.