Demma v. Forbes Lumber Co.

• Citation: 178 N.E.2d 455,133 Ind.App. 204
• Decision Date: 08 December 1961
• Docket Number: No. 1,No. 19506,19506,1
• Parties: Mary DEMMA, Michael P. Matracla, as Executor of the Estate of Mary Demma, James L. Johnson, Appellants, v. FORBES LUMBER COMPANY (an Indiana Corporation), Appellee
• Court: Court of Appeals of Indiana

Page 455

178 N.E.2d 455

133 Ind.App. 204

Mary DEMMA, Michael P. Matracla, as Executor of the Estate

of Mary Demma, James L. Johnson, Appellants, v. FORBES LUMBER COMPANY (an Indiana Corporation), Appellee.

No. 19506.

Appellate Court of Indiana, Division No. 1.

Dec. 8, 1961.

Richard Lowther, Indianapolic, Curtis W. Roll, Kokomo, for appellant.

Thomas F. Gibson, Jr., Indianapolis, for appellee.

COOPER, Judge.

This matter comes before us from the Probate Court of Marion County wherein the appellee, Forbes Lumber Company, filed what was designated as, 'Amended Claim of Forbes Lumber Company for Foreclosure of Mechanic's Lien'.

The pleading designated as 'Amended Claim of Forbes Lumber Company for Foreclosure of Mechanic's Lien', omitting the caption, reads as follows:

'Comes now the claimant, Forbes Lumber Company, an Indiana corporation, a corporation organized and existing pursuant to the laws of the State of Indiana, and by way of filing its claim in the Probate Court, complains of the defendants, Mary Demma, Michael P. Matracia, as Executor of the Estate of Mary Demma, and James L. Johnson, and for cause of claim and action alleges and says:

'1. That on or about the 4th day of June, 1956, and at all times hereinafter mentioned until the date of her death, August 31, 1957, the defendant, Mary Demma, was the owner in fee simple of the following described real estate in Marion County, Indiana, to-wit:

'Part of Our Lot 21 of the Donation Lands in the City of Indianapolis, more particularly described as follows:

'Beginning at the Northeast corner of said Out Lot 21, thence West along the north line of said Out Lot 125 feet thence South 30 feet; thence East 125 feet to the East line of said Out Lot, thence North 30 feet to the place of beginning, otherwise known as 502 S. East St.

'2. That some time on or about the 4th day of June, 1956, and while the defendant Mary Demma was the owner of the afore-described real estate, said defendant did contract with one James L. Johnson to erect and construct on aforesaid premises certain valuable and lasting improvements, to-wit, remodel and repair the dwelling house at that address, and other improvements, the exact nature of which is unknown to claimant but well known to defendants and each of them.

'3. That in the construction and remodel thereof, on and between the 26th day of June, 1956, and the 8th day of October, 1956, inclusive, at the special instance and request of said defendant, Mary Demma, and her contractor, James L. Johnson, claimant, Forbes Lumber Company, did furnish, sell and deliver to said defendant, James L. Johnson for specific use in and upon the aforesaid improvements on said premises certain building materials of the fair and reasonable value of $294.53, and which was also the agreed price thereof, and all of which is more specifically set forth in a Bill of Particulars attached hereto and filed herewith and made a part of this complaint and marked 'Exhibit A'.

'4. That all of the aforesaid building materials, except those returned for credits as set forth in aforesaid 'Exhibit A', were specifically used in and upon the improvements on said premises; and that there is now due plaintiff by said defendants, Mary Demma and Michael P. Matracia, as Executor of the Estate of Mary Demma, the sum of $294.53, and which said sum is now past due, owing and wholly unpaid.

'5. Plaintiff further says that on the 4th day of December, 1956, and within 60 days from the time said materials were furnished as aforesaid in and on said real estate, they filed in the office of the Recorder of Marion County, State of Indiana, a notice in writing of their intention to hold a Mechanic's Lien on said above described real estate, for the amount and to the extent set out therein, which said notice was recorded in said office of said date in Lien Record 566, Instrument No. 84094, a copy of which is filed herewith, attached hereto, made a part hereof and marked 'Exhibit B'.

'6. That prior to filing this Suit said owner, defendant Mary Demma died on August 31, 1957, and that by Will, duly filed and probated in this Court, her brother, defendant Michael P. Matricia, was named and has qualified as Executor of the Estate of Mary Demma; and further, said Michael P. Matricia, as Executor of the estate of Mary Demma, was notified by mail of the pendency of this lien and materials claim September 27, 1957.

'7. Plaintiff further says, failing to receive payment of its lien upon demand of the Executor and his Attorney, that it has been compelled to and did employ the services of an attorney, Thomas F. Gibson, Jr., to commence and prosecute this action, and that a reasonable fee for the services of such attorney is the sum of $200.00.

'8. That there has been long and unreasonable delay in the payment of said labor and materials, and that plaintiff is entitled to interest thereon from June 26, 1956, at six per cent per annum.

'9. That there is now due, owing and wholly unpaid of principal, interest and attorneys fees, the sum of $550.00; that said real estate is not susceptible to division; that said lien is a valid and subsisting first lien on and against said above described real estate; that plaintiff, Forbes Lumber Company, is entitled to have the same foreclosed and said real estate sold as other lands are sold upon execution, and the proceeds arising therefrom applied to the payment or reduction of any amount found due herein.

'Wherefore, claimant, Forbes Lumber Company, prays judgment against the defendants, Mary Demma and Michael P. Matricia, as Executor of the Estate of Mary Demma, in the sum of $550.00 and costs for this its claim filed in the Probate Court; that said lien be declared valid and subsisting first lien on and against said above described real estate, and prior and superior to all other liens and encumbrances thereon of every name and nature; that the same be foreclosed, and said real estate sold as other lands are sold upon execution, and the proceeds arising therefrom, be applied to the payment or reduction of any amount fund due this claimant, and for all other proper and equitable relief in the premises.'

Signature and Jurat

It appears from the record that the issues were properly closed and that on March 18, 1960, the cause was submitted to the court for finding and judgment.

After the conclusion of all the evidence, the court entered the following finding, decree and judgment:

'Come now the parties in person and by counsel and the amended claim of Forbes Lumber Company being at issue upon the denial of the same be defendants is submitted for trial, finding and decree.

'And during the course of the trial and on motion of the claimant the cause is dismissed as to the defendant James L. Johnson, which dismissal is approved by the Court.

'And the evidence being submitted and the Court hearing argument of counsel and being duly advised in the premises finds:

'That the claimant is an Indiana corporation and is a materialman under the terms of the Indiana Mechanics' Lien Law on Real Estate, and that the claimant did furnish and deliver to James L. Johnson, contractor for use on real estate of the deceased Mary Demma, as hereinafter descrbed, certain materials that were used by the said contractor on said premises in keeping with the terms of two contracts for repairs and improvements on said property, entered into theretofore by the said Mary Demma and the said James L. Johnson, contractor.

'That said contractor was paid in full for services and materials on one contract, but not on the other, and that the claimant, Forbes Lumber Company, was not paid in full for the materials it furnished and delivered to said contractor for use on the said real estate of the decedent hereinafter described and used in the execution of said contracts by said contractor;

'That the unpaid balance due said claimant, Forbes Lumber Company, for the materials thus furnished and used on the premises of the deceased is Two Hundred Ninety-four dollars and fifty-three cents ($294.53), on which interest is due from the date of last delivery, to-wit: October 8, 1956, in the amount of Fifty-five dollars and eight-six cents (55.86);

'That under the terms of the Mechanics' lien law of Indiana the said claimant is entitled to a Mechanic's Lien on the real estate of the deceased hereinafter described, and that in keeping with said Mechanics' Lien Law due notice of the holding of a Mechanic's Lien was filed by said Forbes Lumber Company within the time prescribed by law, and the claim to enforce said lien was filed in this estate within the time prescribed by law;

'That under the terms of the Indiana Probate Code (Acts 1953, Chapter 112, Section 1413, Page 295) the administration of a decedent's estate is a proceedings in rem and the possession of the real estate of the deceased is vested in the personal representative, who is charged with collecting the rents and earnings therefrom, paying the taxes thereon and keeping the buildings and fixtures thereon in tenantable repair and under his control and protected by insurance, and that any person claiming any lien or right in said real estate has a right under said Indiana Probate Code to assert such claim, lien or right against such real estate in the court having jurisdiction of the administration of said estate.

'The Court further finds that in keeping with the provisions of the said Indiana Probate Code and the Indiana Mechanics' Lien Law on real estate (Acts 1909, Chapter 116, Section 4, Page 295) the date and extent of said lien shall be the date of the first delivery of materials on the job, to-wit: June 26, 1956, and said lien shall extend to all the right, title and interest in said real estate hereinafter described owned therein by said deceased Mary Demma, as provided in said Indiana Mechanics' Lien Law;

'That the real estate of the deceased hereinafter described is subject to a Mechanic's Lien in favor of said claimant as a...