Deal v. Plass

• Citation: 109 N.E. 51,59 Ind.App. 185
• Decision Date: 02 June 1915
• Docket Number: No. 8634.,8634.
• Parties: DEAL et al. v. PLASS.
• Court: Court of Appeals of Indiana

59 Ind.App. 185

109 N.E. 51

DEAL et al.

v.PLASS.

No. 8634.

Appellate Court of Indiana, Division No. 1.

June 2, 1915.

Appeal from Superior Court, Elkhart County; Vernon W. Van Fleet, Judge.

Action by John I. Plass against Leonard Deal and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Otto E. Deal and James H. State, both of Elkhart, for appellants. Perry L. Turner, of Elkhart, for appellee.

FELT, J.

Appellee filed his complaint to foreclose a mechanic's lien on appellants' real estate in Elkhart county, Ind., described as follows:

“Commencing at the southwest corner of lot one hundred and sixty-two (162) in the Second south & western addition, in the city of Elkhart; thence north three (3) degrees, east two hundred fifty-seven (257) feet; thence westwardly, parallel with the northerly line of High street, to the St. Joseph river; thence southerly, along the curves of said river to the point of the intersection with the north line of High street; thence easterly, along the northerly line of High street to the place of beginning.”

It is averred that on or about July 4, 1910, the owners of said real estate, appellants, employed appellee to construct a cement floor in the cellar of their house on said real estate, and agreed to pay him $45 for the necessary labor and material; that he fully performed his contract, and there is due him therefor $45; that at appellants' request he did some brickwork of the value of $2. The complaint also alleges facts which show the filing of a notice about which no question is raised, except as to the description of the property, as to which it is alleged “that in the description of said real estate a mistake was made in this, that the description in said lien was written as lot No. 164, in the Second south and western addition to the city of Elkhart, in Elkhart county and state of Indiana”; that appellants were, at said time, the owners of said lot No. 164; *** “that the real estate first described above, and upon which the house was located wherein he constructed said cellar and did said brickwork, is located upon the north side of High street *** a short distance westwardly from a point opposite said lot No. 164”; that the house of appellants “located upon the real estate first described herein was the only house erected or repaired by the defendants, in the city of Elkhart, during the year of 1910, and the only house of said defendants in which he constructed a cellar floor or did brickwork.” The notice of lien as far as material here is as follows:

“Mechanic's Lien. September 1, 1910. To Leonard Deal, Adelia Deal and to Whom Else It may Concern: Take notice that I intend to and do hold a lien on the following described real estate situate in the city of Elkhart, Elkhart county and state of Indiana, viz., Lot No. one hundred sixty-four (164) in the Second south and western addition to the city of Elkhart, in the sum of $47.00 for work, labor and material furnished and performed, done and used in and upon the erection and repair of the house on said real estate at your special instance and request, within the sixty days last past.”

Appellant filed a motion to strike out parts of the complaint, which motion was overruled. The cause proceeded to trial without answer by appellants. There was a finding and judgment in favor of appellee, and a decree foreclosing the lien on the property first above described, and ordering the same sold. Appellants' motion for a new trial was overruled. The errors assigned are the overruling of appellants' motion to strike out a part of the complaint, and the overruling of their motion for a new trial.

[1] Appellee insists that appellants' brief is insufficient to present any question. The briefs are subject to criticism, but show such substantial compliance with the rules as to enable us to ascertain therefrom that the controlling question is: Did appellee, by virtue of the notice filed, acquire an enforceable lien on the property ordered sold?

[2][3] Appellants admit that a defective description may be aided by extrinsic facts, and...