Where a court dealing in equity has property or money under its jurisdiction, it has power to appropriately direct its application in order to carry out justice. Gatchell v. Henderson, 156 Neb. 1, 54 N.W.2d 227 (1952). FACTS
John argues that the district court had subject matter jurisdiction to issue this order under common-law rules of equity and Neb. Rev. Stat. ยง 42-351 (Reissue 1998). He relies upon our decision in Gatchell v. Henderson, 156 Neb. 1, 54 N.W.2d 227 (1952), in which we stated that where a court dealing in equity has money or property under its jurisdiction, it has the power to appropriately direct its application in order to carry out justice. The general proposition stated in Gatchell does not apply to the facts of this case.
Applying this statutory language, we have held that where a defendant is in default, the allegations of the petition are to be taken as true against him, except allegations of value and amount of damage. See, Gatchell v. Henderson, 156 Neb. 1, 54 N.W.2d 227 (1952) (holding that amount of default judgment should have been limited to amount of damages established by evidence); Slater v. Skirving, 51 Neb. 108, 70 N.W. 493 (1897) (holding that necessity of proof on default arises only with respect to value or amount of damages). In the present case, no evidence was offered to substantiate the $4,997,210 in damages for which Truck was adjudged liable by default, and the district court therefore had an inadequate factual basis upon which to enter judgment against Truck.
That language was used, however, in the context of a hiatus of at least 2 months between the furnishing of the last and the penultimate items. Language similar to that of Occidental is found in Disbrow Co. v. Peterson, 136 Neb. 719, 287 N.W. 220 (1939), and Gatchell v. Henderson, 156 Neb. 1, 54 N.W.2d 227 (1952). However, Disbrow presented a 6-month hiatus prior to the furnishing of the last item and Gatchell involved the substitution of proper material in place of defective material.
The record is clear that there was no construction work of any kind on the Coronado project after December 1973. There is a presumption that where more than 60 days intervene between the performance of work items in a mechanic's lien account, the last item performed was furnished under a separate contract. See Gatchell v. Henderson, 156 Neb. 1, 54 N.W.2d 227 (1952). Our court held in Occidental Savings and Loan Assn. v. Cannon, 184 Neb. 659, 171 N.W.2d 166 (1969) that: "The time for filing a lien cannot be delayed by performing minor labor or furnishing minor items of materials."
Without elaboration or analysis a long line of cases has adhered to the general rule above stated, basing the rule on lack of privity of contract. Alberti v. Moore (1908) 20 Okla. 78, 93 P. 543; Seran v. Rose (1923 โ Okla.) 219 P. 940; Newman v. Kirk (1933 โ Okla.) 23 P.2d 163; Schram v. Manary (1927 โ Or.) 262 P. 263; Blossom Provine Lumber Co. v. Schumacher (1928 โ Wash.) 266 P. 167; Keefer v. Lavender (1952) 74 Ariz. 24, 243 P.2d 457; Brannan Sand Gravel Co. v. Santa Fe Land Imp. Co. (1958 โ Colo.) 332 P.2d 892; H.T.C. Corp. v. Olds (1971 โ Colo.) 486 P.2d 463; Gignilliat v. West Lumber Co. (1949) 80 Ga. App. 652, 56 S.E.2d 841; Drawdy v. McVeigh (1964) 110 Ga. App. 329, 138 S.E.2d 477; McCorkle v. Lawson Co. (1953 โ Ky.) 259 S.W.2d 27; Gatchell v. Henderson (1952) 156 Neb. 1, 54 N.W.2d 227; Walker v. Ball (1960 โ C.A. Ohio) 171 N.E.2d 541; Keeley Lumber Coal Co. v. Dunker (1956 โ S.D.) 77 N.W.2d 689. The statement of law above quoted, however, contained the phrase, "apart from unjust enrichment."
Was the remedy fashioned a proper one? It is elementary that equity, once it assumes jurisdiction, has the power to devise a remedy which will do complete justice and eliminate further litigation. Penn Mut. Life Ins. Co. v. Katz, 139 Neb. 501, 297 N.W. 899; Gatchell v. Henderson, 156 Neb. 1, 54 N.W.2d 227. The evidence shows that the market value of Food Host stock declined during the period of time the plaintiff was attempting to sell and to convert his unregistered shares into cash. It is clear that the mere issuance of registered shares after the long period of time in which there was delay in the delivery of the stock, would not give effect to the $15 per share guarantee which the contract specifically provides for.
It seems clear that plaintiff has no right of recovery from the Housing Authority. His contract was with the principal contractor, Dougherty, and not with the Housing Authority. "In the absence of an otherwise binding agreement, express or implied, there is no privity of contract between a subcontractor and the owner." Gatchell v. Henderson, 156 Neb. 1, 54 N.W.2d 227. See, also, Rosebud Lumber Coal Co. v. Holms, 155 Neb. 459, 52 N.W.2d 313. At the September 22, 1966, meeting, United offered to the Housing Authority certain terms for a final settlement of their respective liabilities under the housing project contract.
It is a fundamental rule that an issue not presented and ruled on by the trial court will not be considered on appeal. Gatchell v. Henderson, 156 Neb. 1, 54 N.W.2d 227; Reller v. Ankeny, 160 Neb. 47, 68 N.W.2d 686. In Robinson v. Meyer, supra, the court went on to say: "Assignments of error * * * (enumerating them) assert that the trial court erred in instructing the jury with reference to certain issues in the case.
If the time which is restricted by the statute can be thus indefinitely extended by acts of this kind, the (90-day) limitation fixed by the legislature in which to file this class of lien can and will be utterly and completely defeated, so that in every case where a right to file a lien has ever existed, the title to the property may for an indefinite period remain in an unsettled and not ascertainable condition, with reference to the character and extent of the mechanic's lien which may be claimed against such property. For this statement and holding see Gatchell v. Henderson, 156 Neb. 1, 54 N.W.2d 227; Disbrow Co. v. Peterson, 136 Neb. 719, 287 N.W. 220; Gem State Lumber Co. v. Witty, 37 Idaho 489, 217 P. 1027. Also see 57 C.J.S. Mechanics' Liens ยง 144, p. 661, for the following: