Brownell Improvement Co. v. Nixon

• Decision Date: 28 June 1911
• Docket Number: 7,391
• Citation: 95 N.E. 585,48 Ind.App. 195
• Parties: BROWNELL IMPROVEMENT COMPANY ET AL. v. NIXON ET AL
• Court: Indiana Appellate Court

95 N.E. 585

48 Ind.App. 195

BROWNELL IMPROVEMENT COMPANY ET AL. v. NIXON ET AL

No. 7,391

Court of Appeals of Indiana

June 28, 1911

48 Ind.App. 195.At 210.

Original Opinion of October 14, 1910, Reported at: 48 Ind.App. 195.

Petition overruled.

OPINION

ON PETITION FOR REHEARING.

MYERS J.

On petition for a rehearing, appellees seem to think that our opinion on the question of priority of liens should state whether it is based on the facts averred in the answer of Patton and others, second improvement lienholders, or upon the facts as found by the court.At our former consideration of this casewe took the facts in the answer as admitted.The complaint contained the usual allegations of fact in such cases.It alleged that these defendants held liens against said real estate inferior to the liens of plaintiffs, and called upon the defendants to answer as to any interest or liens claimed by them against the real estate described in the complaint.The answer brought before the court all of the proceedings of the second improvement, beginning with the declaratory resolution passed by the common council, and each step thereafter, including the issue of the bonds to the contractors, and their subsequent assignment to these defendants, whereby they claimed to hold liens superior to the liens of the first improvement.Conceding that appellants, by their action in withdrawing their reply to the answer, admitted all the facts averred in said answer, such action would not authorize the court to measure such facts by any other rule of law than that applicable to facts pleaded as a defense to plaintiff's claim of superiority.Facts confessed can have no more force than facts established in any other manner.If they failed to show superiority, and instead showed liens of equal rank with those sought to be enforced, then the court should have made such order in the premises as the facts...