Dix v. Willfred Coal Company

• Court: Indiana Appellate Court
• Writing for the Court: NICHOLS, P. J.
• Citation: Dix v. Willfred Coal Company, 132 N.E. 595, 76 Ind.App. 511 (Ind. App. 1921)
• Decision Date: 28 October 1921
• Docket Number: 11,014
• Parties: DIX ET AL. v. WILLFRED COAL COMPANY ET AL

132 N.E. 595

76 Ind.App. 511

DIX ET AL. v. WILLFRED COAL COMPANY ET AL

No. 11,014

Court of Appeals of Indiana

October 28, 1921

From Sullivan Circuit Court; William H. Bridwell, Judge.

Appeal from Circuit Court, Sullivan County; Wm. H. Bridewell, Judge.

Action by Parintha B. Dix and others against the Willfred Coal Company and others. From the judgment rendered, the plaintiffs appeal.

Affirmed.

Charles D. Hunt, for appellants.

Adamson & Gallagher and Ray H. Briggs, for appellees.

OPINION

NICHOLS P. J.

This was an action by appellants against appellees on account and to foreclose a mechanic's lien. Appellees challenge the sufficiency of the brief to present any question for our consideration, but we hold that the brief shows a good-faith effort, and we are able from it to understand the real question involved. We deem it proper to remark, however, that while an examination of what purports to be the evidence shows that the special findings of the court are supported by some evidence, it does not appear by the brief that any time was ever granted within which to file a bill of exceptions containing the evidence and proceedings at the trial, or that such bill of exceptions was ever filed. There is therefore no question presented by the court's ruling on the motion for a new trial.

As appears by the special finding of facts, so far as here involved, on April 10, 1917, appellee Gardner executed to one Freeman a written lease, with an option to purchase the real estate involved, which lease and option was on May 31, 1917 duly assigned by said Freeman to appellee Willfred Coal Company, which lease provided, among other things, "that said lessee shall within thirty days from the date hereof begin putting said properties into shape to actively mine coal and that within six months from the date hereof he will expend for machinery, improvements and betterments on said properties not less than the sum of $ 15,000; $ 5,000 of which sum has been this day deposited by said lessee with said lessor to apply upon said improvements and betterments, * * * all of which improvements betterments, fixtures and equipments made upon or added to said mines or premises by said lessee at any time during the continuance of this lease shall become the property of said lessor upon the termination of said lease, unless said lessee shall exercise the option to purchase hereinafter granted to him during the term of this lease as herein provided." Appellants furnished material for appellee coal company as follows: March, 1918, $ 90; April, 1918, $ 42.80; May, 1918, $ 25.12; June, 1918, $ 730.97; September, 1918, $ 2.70; November, 1918, $ 127.89. Appellants filed their notice of lien December 24, 1918. At that time there was due appellants, after deducting payments and certain items for which it was conceded that there was no right to a lien, $ 862.11. The court...