Wells v. David City Improvement Co. , 43 Neb. 366 ( 1895 )

Ryan, C.

This action was brought for the foreclosure of a lien for lumber and other material sold by appellant to B. P. Ei- ' field, who had contracted to build the hotel now known as the Perkins House, in David City. There was judgment in the district court of Butler county in favor of the defendants. Appellant’s relation to the owner of the hotel, the David City Improvement Company, was that of subcontractor. To enable him, therefore, to assert his claim for a lien on the improved property, it devolved on him to-show that the last item of his account was not more than sixty days previous to the the date on which his affidavit for a lien was filed. (Sec. 2, art. 1, ch. 54, Comp. Stats.)The date on which this sworn statement for a lien in this case was filed was September 14, 1888. To its binding force it was therefore necessary that there should have accrued a part of tlie account as late, or later than July 16, 1888. There was a great deal of evidence introduced as-, to the material having been furnished on July 16th and. 25th, respectively, for the construction of the hotel. It seems from this evidence to have been quite satisfactorily established that neither of these two items was furnished. Mr. Eifield by plaintiff for use in' the hotel, and that such part as may have been so used was purchased by a tenant for his own benefit after the improvement company had refused to make the improvements which he desired. Upon evidence which was conflicting, certainly with no-preponderance in favor of appellant, the district court found.“that the allegations of plaintiff’s petition were not true, and that plaintiff’s pretended lien was not filed within, the time required by law,” etc. Under such circumstances no citation of authorities is necessary to sustain the rule,, well known and uniformly followed, that when the evidence is merely conflicting the judgment of the district court will not be disturbed, when the sole question presented is as to the sufficiency of the evidence to sustain the judgment appealed from. The judgment of the district court is

Affirmed.

Post, J., having presided in the district court, took no-part in the determination of the above cause in this court..