Glenn v. Thatcher Glass Mfg. Co., 20058

• Decision Date: 08 September 1965
• Docket Number: No. 1,No. 20058,20058,1
• Parties: George GLENN and Cincinnati Concrete Pipe Co., Appellants, v. THATCHER GLASS MANUFACTURING CO., Inc., Hungerford Construction Co., H. W. Steigerwald, Donald Walston and Paul Willis, Appellees
• Court: Indiana Appellate Court

Page 900

209 N.E.2d 900

139 Ind.App. 302

George GLENN and Cincinnati Concrete Pipe Co., Appellants, v. THATCHER GLASS MANUFACTURING CO., Inc., Hungerford Construction Co., H. W. Steigerwald, Donald Walston and Paul Willis, Appellees.

No. 20058.

Appellate Court of Indiana, Division No. 1.

Sept. 8, 1965.

Rehearing Denied Oct. 28, 1965.

[139 INDAPP 302]

William H. Turner, Anthony C. Meyer, Lawrenceburg, Frank I. Hamilton, Greensburg, of counsel, for appellants.

Richard K. Ewan, Lawrenceburg, for Thatcher Glass Mfg. Co., Inc.

Joseph M. Lancett, Lawrenceburg, John E. Anderson, Jackson, Mich., Albert W. Ewbank, Indianapolis, of counsel, for Hungerford Construction Co.

CARSON, Judge.

This case comes to us on appeal from the Dearborn Circuit Court.

The action was started by the complaint filed by the plaintiff-appellant George Glenn against the defendant-appellee Thatcher Glass Manufacturing Co., Inc. The other parties to the action came in by various answers and cross-complaints. The appellee H. W. Steigerwald filed an answer in admission [139 INDAPP 303] and denial under rule 1-3 of the Supreme Court. The appellee Thatcher Glass Manufacturing Co. filed answer in admission and denial under rule 1-3. The appellee Hungerford Construction filed answer in admission and denial under rule 1-3. The defendant Thatcher Glass also filed a cross-complaint requesting the court to adjust the equity between the parties and to discharge the liens against the real estate of the Thatcher Glass Co. The defendant-appellee H. W. Steigerwald also filed a cross-complaint against Hungerford Construction Co. and Thatcher Glass Co. praying judgment against defendant Hungerford Construction Co. for the sum of $480.00 together with interest and attorney's fees in the amount of $175.00. The appellee Thatcher Glass Manufacturing Co. filed answer under rule 1-3 to the cross-complaint of H. W. Steigerwald. The appellant Cincinnati Concrete Pipe Co. filed answer to the complaint of George Glenn in admission and denial under rule 1-3. The appellee Hungerford Construction filed answer under rule 1-3 to the cross-complaint of the appellee H. W. Steigerwald. The appellee Donald Walston filed cross-complaint against the Hungerford Construction Co. and Thatcher Glass Manufacturing Co. for labor and material for the total sum of $1,985.25 and prayed judgment against the defendant Hungerford Construction Co. for said sum together with attorney's fees in the amount of $500.00. The appellant Cincinnati Concrete Pipe Co. filed cross-complaint against the defendant Thatcher Manufacturing Co. and Hungerford Construction Co. seeking judgment in the amount of $4,982.85 and also seeking judgment against the plaintiff-appellant George Glenn. Various other answers and replies under the Supreme Court rules were filed by the various cross-defendants in the action.

The cause was submitted to the court for trial without jury and upon conclusion of plaintiffs' evidence motions were made by various parties to the action and the court's rulings thereon in substance were as follows:

[139 INDAPP 304] 1. Motion of the appellee Thatcher Glass Manufacturing Co., Inc., for judgment against the appellant Cincinnati Concrete Pipe Co. sustained.

2. Motion of the defendant Hungerford Construction Co. for judgment against the defendant Cincinnati Concrete Pipe Co. overruled.

3. Motion of the defendant Cincinnati Concrete Pipe Co. for the judgment against the defendant Hungerford Construction Co. overruled.

4. Motion of the defendant Hungerford Construction Co. at the close of all the evidence for judgment against Cincinnati Concrete Pipe Co. sustained.

Following the various actions of the court on the above motions and at the conclusion of all of the evidence the court rendered the following judgment in substance:

Comes now the parties by counsel and it appearing to the court that certain of the parties have settled and compromised their differences and the contention of the other parties being submitted to the court and the court having considered all things now finds:

'1. That there is due the plaintiff, George Glenn, from the defendant, Hungerford Construction Company, the sum of $1,327.58, and the further sum of $500.00 as a fee for plaintiff's attorney, which sums the plaintiff is entitled to recover from the defendant, Hungerford Construction Company, together with the costs of this action, all without relief from valuation and appraisement laws. And the Court further finds that the plaintiff filed a mechanic's lien within the statutory period of time and is entitled to hold a lien on the premises hereinafter described for the sum of $1,827.58 and is entitled to have said lien enforced against said premises of the defendant, Thatcher Glass Mfg. Co., Inc.

2. That there is due the defendant and cross-complainant, H. W. Steigerwald, from the defendant, Hungerford Construction Company, the sum of $480.00, and the further sum of $100.00 as a fee for the attorney of said cross-complainant, which sums the cross-complainant is entitled to recover from the defendant, Hungerford Construction [139 INDAPP 305] Company, together with his costs in this action, all without relief from valuation and appraisement laws. And the Court further finds that said cross-complainant filed a mechanic's lien within the statutory period of time and is entitled to hold a lien on the premises hereinafter described for the sum of $580.00 and is entitled to have said lien enforced against said premises of the defendant, Thatcher Glass Mfg. Co., Inc.

3. That there is due the defendant and cross-complainant, Paul Willis, from the defendant, Hungerford Construction Company, the sum of $1,770.00 and the further sum of $300.00 as a fee for the attorney of said cross-complainant, which sums the said cross-complainant is entitled to recover from the defendant, Hungerford Construction Co., together with his costs in this action, all without relief from valuation and appraisement laws. And the Court further finds that said cross-complainant filed a mechanic's lien within the statutory period of time and is entitled to hold a lien on the premises hereinafter described for the sum of $2,070.00, and is entitled to have said lien enforced against the said premises of the defendant, Thatcher Glass Mfg. Co., Inc.

4. The Court further finds that the defendant and cross-complainant, Cincinnati Concrete Pipe Co., failed to file a mechanic's lien within the statutory period of time and that said cross-complainant take nothing on its cross-complaint against the defendants herein.

5. The Court further finds that the defendant, Thatcher Glass Mfg. Co., Inc., take nothing on its cross-complaint against the plaintiff, George Glenn, herein.

6. The Court further finds that the defendant, Hungerford Construction Co., take nothing on its cross-complaint against the plaintiff, George Glenn, herein.

Upon the above findings the court rendered consistent judgment.

Motions for new trial were filed separately by the appellant, Glenn, and the appellant, Cincinnati Concrete Pipe Co. and read as follows:

'The plaintiff in the above entitled cause moves the Court for a new trial thereof for the following reasons, to-wit:

1. The finding of the Court is not sustained by sufficient evidence.

[139 INDAPP 306] 2. The decision of the Court is not sustained by sufficient evidence.

3. The finding of the Court is contrary to law.

4. The decision of the Court is contrary to law.

5. That the Court erred in sustaining the objection of the defendant, Hungerford Construction Company to the following question asked of the witness, Ray Fox, on direct examination by plaintiff's Attorney as follows, to-wit: 'What is the costs of the removal of blue shale rock?', to which ruling plaintiff at the time excepted.

6. That the Court erred in sustaining the objection of the defendant, Hungerford Construction Co., to the following question asked of the witness, Raymond Fox, on direct examination by the Attorneys for the plaintiff as follows, to-wit: 'What, in your opinion, is the reasonable value per yard for the removal of blue shale rock in this area?', to which ruling the plaintiff, at the time, excepted.

7. That the Court erred in sustaining the objection of the defendant, Hungerford Construction Co., to the following question asked of the witness, Raymond Fox, on direct examination by the Attorney for the plaintiff as follows, to-wit: 'In your opinion what was the amount of blue shale rock at Thatcher Glass?', to which ruling plaintiff, at the time, excepted.

8. That the Court erred in sustaining the objection of the defendant, Hungerford Construction Company, to the offer of the exhibit by the plaintiff on the direct examination of the plaintiff, George Glenn, which said exhibit is as follows, to-wit: The statement of account of the plaintiff, George Glenn, with the Cincinnati, Ohio for Pipe Company of Cincinnati, Ohio for material placed on the job in this cause, to which said ruling the plaintiff excepted.

9. The assessment of the amount of recovery is erroneous, being too small. WHEREFORE, the plaintiff prays the Court for a new trial of the said cause. GEORGE GLENN, PLAINTIFF.'

'The Cross Complainant, Cincinnati Concrete Pipe, in the above entitled cause, moves for a new trial herein on his cross complaint on each of the following grounds:

1. That the finding and decision of the Court is not sustained by sufficient evidence.

[139 INDAPP 307] 2. That the decision of the Court is contrary to law.

3. That the Court erred in refusing the Cross Complainant's Attorneys the right to oral argument on his cross complaint at the close of the evidence.

4. That the Court erred in that it did not notify the Cross Complainant of the date upon which oral argument was made by Counsel in this case.

WHEREFORE, the Cross Complainant prays this Court for a new trial of the issues on its cross complaint. Anthony C. Meyer, Attorney for Cross Complainant, ...