Aetna Glass Corp. v. Mercury Builders, Inc.

• Decision Date: 16 September 1969
• Docket Number: No. 468,No. 1,468,1
• Citation: 250 N.E.2d 598,145 Ind.App. 286
• Parties: AETNA GLASS CORPORATION, an Illinois Corporation; Fadell Electric Company, Inc., Appellants, v. MERCURY BUILDERS, INC., an Illinois Corporation et al., Appellees. A 63
• Court: Indiana Appellate Court

Page 598

250 N.E.2d 598

145 Ind.App. 286

AETNA GLASS CORPORATION, an Illinois Corporation; Fadell Electric Company, Inc., Appellants, v. MERCURY BUILDERS, INC., an Illinois Corporation et al., Appellees.

No. 468 A 63.

Appellate Court of Indiana, Division No. 1.

Sept. 16, 1969.

Dale Shoup, Shoup, Kiernan & McDonagh, Hammond, for appellants.

Charles Levin, Hammond, for appellees.

COOPER, Judge.

This matter comes to us from the Lake Superior Court Room Two, wherein the Aetna Glass Corporation, (hereinafter called Aetna) brought an action against the herein named appellees and Fadell Electric Company (hereinafter called Fadell) as defendants, to foreclose a mechanics' lien against certain real estate owned by the appellees Theodore Dattel and Pauline M. Dattel, his wife, and Samuel Dattel and Marlene C. Dattel, his wife, (hereinafter called defendants Dattel).

The defendant Fadell thereafter filed a cross complaint against the same named defendants to foreclose its mechanics' lien against the same real estate owned by the defendants Dattel.

The plaintiff-appellant Aetna has dismissed its action against the United States of America. This action is still pending, however, against all of the remaining defendants-appellees except the defendants Dattel, for whom the trial court granted summary judgment. The appeal now before us is from the judgment of the trial court granting a motion for summary judgment filed by the defendants Dattel against the appellants herein, Aetna and Fadell.

The complaint filed by Aetna alleged that it had entered into a contract with the defendant Mercury Builders, Inc., to furnish certain materials to be used for improvements on real estate owned by the defendants Dattel. It prayed for judgment against the defendants Dattel for the balance due under its contract with Mercury Builders, and prayed that its mechanic's lien be foreclosed. Attached to the complaint was a copy of the contract between the plaintiff and Mercury Builders, Inc., and a copy of its Notice of Intention to hold mechanics lien.

Thereafter the defendant Fadell filed an answer in compliance with Rule 1--3 of the Rules of the Supreme Court of Indiana, and a cross complaint. The cross complaint alleged that Fadell had entered into a contract with Mercury Builders to perform electrical work and to furnish materials in a building being constructed by Mercury Builders on real estate owned by the defendants Dattel. The cross complaint prayed for judgment against the defendant Mercury Builders for the balance due on its contract and for foreclosure of its mechanics lien against the real estate owned by the defendants Dattel. Attached to the cross complaint is a copy of the contract between Fadell and Mercury Builders, and a copy of Fadell's Notice of Intention to hold mechanic's lien on the real estate owned by the Dattels.

The defendants Dattel filed an answer to the complaint of Aetna in compliance with Rule 1--3, and alleged as an affirmative defense that 'the lien was not filed in accordance with law, that it is not verified as required by law; and that the Plaintiff does not have due and owing to it the amount claimed in said mechanics' lien.'

The defendants Dattel filed an answer to the cross complaint of Fadell in compliance with Rule 1--3, and further alleged as an affirmative defense, 'that said lien is not filed in accordance with law; that it is not verified as required by statute; and that the lien is invalid and unenforceable, and that the plaintiff does not have due and owing to it the amount claimed in said mechanic's lien.'

Both answers filed by the defendants Dattel state that the defendants have paid certain amounts to the plaintiff and the cross-complainant, setting out the amounts allegedly paid, the dates the payments were made, and the remaining balances due. In answer to the cross complaint of Fadell, the answer then states:

'4. There is a balance due and owing plaintiff on its contract by Mercury Builders in the sum of Three Thousand three hundred seventy eight and 54/100 ($3,378.54) Dollars.

'WHEREFORE, defendant prays judgment.'

In the answer to the complaint of Aetna, the answer then states:

'That there is a balance due and owing plaintiff the sum of Four Thousand One Hundred Ninety and no/100 ($4,190.00) Dollars.

'4. That defendants have heretofore offered to pay plaintiff the sum of Four thousand one hundred ninety and no/100 ($4,190.00) Dollars, and by this answer hereby offers to pay said sum of Four Thousand one hundred ninety and no/100 ($4,190.00) Dollars being the sum due and owing plaintiff.

'WHEREFORE, defendant prays judgment.'

The defendants Dattel then filed their motion for summary judgment which reads as follows:

'Defendants Theodore Dattel and Pauline Dattel, his wife, and Samuel Dattel and Marlene C. Dattel, pursuant to Burns' Indiana Annotated Statutes, Section 2--2524, move the Court for summary judgment in their favor and against each of the Defendants and Cross-Complainants Fadell Electric Company, Inc. and Aetna Glass corporation on the counter-complaints of each of said Defendants and Cross-Complainants for the foreclosure of their respective mechanics' liens on the real estate therein described, on the ground that the pleadings and the exhibits attached to said counter complaints show that the Defendants Theodore Dattel and Pauline Dattel, his wife and Samuel Dattel and Marlene C. Dattel are entitled to judgment on that issue as a matter of law in that each of said notices of lien is not verified as required by law and is therefore invalid and unenforceable.'

Thereafter the Court entered the following Judgment:

'The Court having deliberated on defendants' Theodore Dattel, et ux and Samuel Dattel, et ux, Motion for Summary Judgment, now makes the following ruling: Motion for Summary Judgment is hereby granted.'

Subsequently the plaintiff Aetna and the cross complainant Fadell moved the Court to modify the judgment as follows:

'Comes now the plaintiff, Aetna Glass Corporation and cross-complainant, Fadell Electric Company, Inc., and move the Court to Modify the Judgement of November 29, 1967, granting the Motion for Summary of Judgment in accordance with Rule 1--8 of the Indiana Supreme Court and that a new Judgment be entered which takes into consideration all matter of record including the admissions of the defendants which are that defendants are indebted to plaintiff and cross-complainant in the respective sums of $4,190 and the sum of $3,378.54.'

and they also filed their motion for a new trial as follows:

'The Plaintiff, Aetna Glass Corporation, and the Cross-Complainant, Fadell Electric Company, Inc., in the above entitled cause, moves the Court for a new trial herein on the following grounds:

'1. That the Court erred in granting the motion for summary judgment filed by the Defendants, Theodore Dattel and Pauline M. Dattel, his wife, and Samuel Dattel and Marlene C. Dattel.

'2. That the judgment is not sustained by sufficient evidence, or is contrary to law.

'3. That the judgment granted by way of summary judgment was not a final judgment to include sums admittedly owing in the pleadings, which is error at law."

Thereafter the motion to modify the judgment and the motion for a new trial were overruled and this appeal followed. The assignment of error is as follows:

'The Appellants aver that there is manifest error in the judgment and proceedings in this cause, which is prejudicial to the appellants, in this:

'1. That the Court erred in overruling Appellant's motion to modify the Summary Judgment to conform with the admissions made in the pleadings, which is error at law.

'2. The Court erred in overruling appellant's motion for a new trial.'

We note that the judgment herein was entered on November 29, 1967, prior to the time the Supreme Court of Indiana on April 22, 1968, amended its Rule 2--6 by adding thereto the provision that from and after April 22, 1968, a motion for new trial shall not be appropriate for raising error claimed by reason of the entering of a summary judgment.

In order to determine whether the defendants Dattel were entitled to summary judgment on the issue of the foreclosure of the liens, we must decide if the Notices of Intention to hold mechanics liens filed by Aetna and Fadell were in the proper form as required by statute so as to entitle Aetna and Fadell to the statutory relief of foreclosure of their liens. A second matter raised by the defendants' answers, the motion to modify the judgment and the motion for new trial, is whether Aetna and Fadell were entitled to personal judgments against the defendants Dattel.

Burns' Indiana Statutes, Sec. 43--703, which is the section of the statute containing the provisions for obtaining a mechanics lien, at the time when the Notices of Intention to hold mechanics lien herein were filed, read in part as follows:

'Any person who wishes to acquire a lien upon any property, whether his claim be due or not, shall file in the recorder's office of the county, at any time within sixty (60) days after performing such labor or furnishing such material, or machinery, described in section 1 (§ 43--701) of this act, verified notice in duplicate of his intention to hold a lien upon such property for the amount of his claim, specifically setting forth the amount claimed, the name and address of the claimant and the name of the owner, and shall give legal description, street and number, if any, of such lot or land on which the house, mill, manufactory or other buildings, bridge, reservoir, system of waterworks or other structure may stand or be connected with or to which it may be removed. * * *' (our emphasis)

The Notice of Intention to Hold Mechanics Lien filed by Aetna contains the following after the signature of the person executing the Notice:

'Before me, a Notary Public in and for said County and State, personally appeared Phil Kagar, who acknowledged the execution of the foregoing...