Chapman v. The Elgin, Joliet And Eastern Railway Company

• Decision Date: 10 January 1895
• Docket Number: 1,250
• Citation: 39 N.E. 289,11 Ind.App. 632
• Parties: CHAPMAN v. THE ELGIN, JOLIET AND EASTERN RAILWAY COMPANY ET AL
• Court: Indiana Appellate Court

39 N.E. 289

11 Ind.App. 632

CHAPMAN v. THE ELGIN, JOLIET AND EASTERN RAILWAY COMPANY ET AL

No. 1,250

Court of Appeals of Indiana

January 10, 1895

From the Lake Circuit Court.

Judgment reversed.

E. D Crumpacker, for appellant.

N. L Agnew, D. E. Kelly and J. W. Youche, for appellees.

OPINION

DAVIS J.

This suit was brought by appellant to foreclose a laborers' lien against the appellees, for work performed by appellant in the grading and building of a roadbed and embankment for the Elgin, Joliet and Eastern Railway Company. A demurrer was filed to the complaint and sustained, and judgment was rendered against appellant for costs, from which he prosecutes this appeal. The sole question for decision relates to the sufficiency of the complaint against demurrer. The action was originally brought in Porter county and carried to Lake county on change of venue.

It is averred in the complaint, in substance, that the Elgin, Joliet and Eastern Railway Company was a railroad corporation owning a line of railroad extending from the city of Joliet, in the State of Illinois, to the village of Porter station, in Porter county, Indiana, and that said railroad was not completed and in operation in said Porter county, between McCool station and said village of Porter, a distance of about seven miles; that the railroad company owned the right of way and had constructed a roadbed and embankment over said distance and between said stations; that said railroad company contracted with appellees Reynolds, Engle and Hannan for the construction of said railroad between said stations of McCool and Porter, in Porter county, and said contractors sublet the work to the appellee Dean, who undertook its execution; that appellant performed work and labor in grading, excavating, and constructing the roadbed and embankment of said railroad between said stations at the special instance and under the employment of said Dean as subcontractor, of the value and to the amount of $ 1,117.90 during the months of November and December, 1892, and January, 1893; that said sum was due appellant and wholly unpaid, and on the 24th of January, 1893, within a period of sixty days after the performance of said work, the appellant filed and caused to be recorded in the proper record in the recorder's office of Porter county, notice of his intention to hold a lien upon said railroad and the rights, privileges and franchises thereunto belonging, for the amount due for labor upon said roadbed. A bill of particulars was filed with and made part of the complaint, as was also a copy of the notice. Judgment was asked against Dean personally and for the foreclosure of the lien against the other appellees.

The bill of particulars filed with the complaint shows the number of days of man and team-work performed by appellant for Dean on the railroad in question during the months of November and December, 1892, and January, 1893, giving the name of each laborer and the amount due on account of each workman.

The lien is claimed under section 6, of the act approved March 9 1889, which provides that any person performing labor in the construction of a railroad may have a lien upon the right of way and franchises of such railroad corporation within the limits of the county in...