Nebraska Material Co. v. Seelig

Root, J. This action is prosecuted to foreclose a mechanic’s lien for material alleged to have been furnished a contractor for the construction of a sidewalk. Defendant prevailed, and plaintiff appeals. The defendant filed a general denial, coupled with a statement that, notwithstanding he denied all liability, he was willing to pay $8.50 for material used in constructing a sidewalk within his lot lines. The district court made a general finding in favor of defendant. There is not a scintilla of evidence in the record to show when the improvement in question was completed, nor to prove the day, month or year any of the material in question was furnished or delivered. The verified account filed with the register of deeds was received in evidence, and defendant’s counsel admitted in open court that the material used in constructing the sidewalk had been delivered by plaintiff, but the vital fact, that a part of the material had been furnished within 60 days of November 28, 1906, the day the account was filed, was not admitted, and cannot be proved by the production of that account. No judgment other than the one rendered can be sustained upon the record. Urlau v. Ruhe, 63 Neb. 883; Sabin v. Cameron, 82 Neb. 106. The judgment of the district court, therefore, is Affirmed. Letton, J., not sitting.