Ellis v. Auch, 18503

• Decision Date: 22 April 1954
• Docket Number: No. 18503,18503
• Citation: 124 Ind.App. 454,118 N.E.2d 809
• Parties: ELLIS v. AUCH et al.
• Court: Indiana Appellate Court

Page 809

118 N.E.2d 809

124 Ind.App. 454

ELLIS v. AUCH et al.

No. 18503.

Appellate Court of Indiana, In Banc.

April 22, 1954.

Orval D. Hunter, Bloomfield, Richard L. Wilder, Bloomington, for appellant.

Paul Haywood, Bloomfield, William T. O'Neal, Spencer, for appellees.

KENDALL, Presiding Judge.

Appellant (plaintiff below) instituted this action against appellees to foreclose a mechanic's lien. The parties had signed what they refer to as an agreement whereby appellant was to perform certain labor and furnish fixtures for appellees' new home.

Appellant's complaint alleges the execution of the contract, that he had performed his part of the agreement, and that the lien was filed on February 23, 1949, which he alleges was within sixty days from the time of furnishing and supplying material and labor.

Appellees filed answer pursuant to Rule 1-3 of the Supreme Court. Therein it was alleged that no labor or materials were furnished or supplied by appellant after November 24, 1948, and that the statutory time for filing of the lien had expired long before February 23, 1949; that the appellees had paid appellant $1,100.

Trial was had by the court. Although the record does not show that the plaintiff rested his case, the appellant admits in his brief that at the conclusion of his portion of the evidence the appellees orally moved the court to peremptorily find for the appellees, which motion was sustained and judgment entered. The motion complained of by appellant is shown in the Bill of Exceptions, which is certified to by the Court Reporter, who certifies that among other items therein contained is, 'peremptory motions to dismiss and rulings thereon'. Said motion and rulings of the court are likewise set forth in appellant's brief.

Appellant's assignment of errors are: (1) The court erred in overruling appellant's motion for new trial; (2) The court erred in sustaining the oral motion of appellees to peremptorily find for them at the close of appellant's evidence; (3) The court erred in peremptorily finding for appellees at close of appellant's evidence.

Attempted assignment of errors two and three present no question. They are not proper, independent assignment of errors. Rothchild v. Citizens Loan Co., 1936, 102 Ind.App. 397, 2 N.E.2d 810; Flanagan, Wiltrout & Hamilton, § 2386(2); Berry v. State Bank of Otterbein, 1935, 99 Ind.App. 655, 193 N.E. 922. However, the matters contained in the attempted assignment of errors two and three are considered under assignment of error number one.

The specifications of the motion for new trial were, (a) That the decision and finding of the court were not sustained by sufficient evidence and contrary to law (b) Abuse of discretion of the court by which plaintiff was prevented from having a fair trial; (c) Error of law occurring at the trial and excepted to by the plaintiff.

The decision was a negative one against appellant who had the burden of proof; therefore, the specification that the decision and finding were not sustained by sufficient evidence is without merit and will not be considered.

Section 43-703, Burns' 1952 Replacement, provides the manner for obtaining mechanic's liens, which is as follows:

'43-703(9833). How obtained--Notice.--Any person wishing to acquire such lien upon any property, whether his claim be due or not, shall file in the recorder's office of the county, at any time within sixty (60) days after performing such labor or furnishing such materials or machinery, described in section one ( § 43-701) notice of his intention to hold a lien upon such property for the amount of his claim, specifically setting forth the amount claimed, and giving a substantial description of such lot or land on which the house, mill, manufactory or other buildings, bridge, reservoir, system of water-works or other structure may stand or be connected with or to which it may be removed. Any description of the lot or land in a notice of a lien will be sufficient, if from such description or any reference therein, the lot or land can be identified.'

In determining whether or not error was committed, it is helpful to examine the agreement the parties executed, which forms the basis for this law suit, the pertinent parts thereof being as follows:

'* * * Ellis agrees to furnish 2 three piece bath rooms (fixtures) consisting of lavatory 5' tub, and close coupled toilet. It is understood that the three pieces for one bath are to be colored. Other fixtures included are: single metal laundry tray, 1 two part cast iron kitchen sink, 1 electric sump pump, 1 half horse power electric water system, and three sill cocks. It is agreed that all labor and material shall conform to accepted standards.

'As estimated over all price in this instance has been figured at 1215.00 dollars, however this agreement is based on current price of material plus labor at $1.75 per hour. Both parties concerned agree to adhere to any price arrived at on a time and material basis.

'The purchaser, shall make payments as follows: $300.00 when the initial roughing in of soil and water pipe is done, $300.00 when the fixtures are delivered, and the balance when the work is all completed.

/s/ Willard Auch

/s/ J. D. Ellis'

The appellant contends in his brief that the question presented is, 'Is the limitation of the foreclosure of a mechanic's lien one year from the date of the filing of the proper notice of the lien or is it one year from the date of the completion of the work covered by the lien?'

In view of the manner in which the record is presented to this court, it is of primary importance to first determine whether or not the lien was...