Jeffries v. Myers
| Decision Date | 25 April 1894 |
| Docket Number | 1,321 |
| Citation | 37 N.E. 301,9 Ind.App. 563 |
| Parties | JEFFRIES v. MYERS ET AL |
| Court | Indiana Appellate Court |
From the Delaware Circuit Court.
W. S Diven and E. B. McMahan, for appellant.
J. W Lovett and S. M. Keltner, for appellees.
In the view we take of the case, the only question necessary for this court to consider is whether the trial court erred in its conclusions of law on the special finding of facts.
The finding discloses that said Myers entered into a contract, in December, 1889, with the school city of Anderson, to build a schoolhouse in said city; that said Myers entered into a contract with appellant to perform the labor of laying the brick in said school building; that appellant performed said work, for which there remained due him, on October 1, 1890, $ 1,410.33, which is unpaid; that on said day said school city was indebted to said Myers on said contract in the sum of $ 8,584, of which it yet owes $ 2,925.80; that on October 1, 1890, appellant gave notice to the school city of Anderson, in writing, particularly setting forth his claim for labor and material in the erection of said building, and showing the amount unpaid, to wit, $ 1,410.33, and that he would look to said school city of Anderson for the payment of the same, to the amount of money then in the hands of said school city due said Myers on his said contract, or which might thereafter become due said Myers on his said contract.
As a conclusion of law, the court found that appellant was not entitled to recover anything against either said Myers or said school city.
Appellee Myers has not filed any brief in this court, and we are not advised on what ground the decision in his favor was based. The finding clearly shows that he is indebted to appellant for work performed in the erection of said building, in the sum of $ 1,410.33, and no reason has been suggested why judgment should not be rendered against him for that amount.
It is sought to maintain the action against the school city of Anderson under section 1696, Elliott's Supp.; section 7262, R. S. 1894. This section is a reenactment of section 5295, R. S. 1881. See section 649, Davis' R. S. 1876, volume 2.
In Secrist v. Board, etc., 100 Ind. 59, the Supreme Court said: "We think it was the intention of the Legislature in these sections to create a personal liability in favor of those only to whom a lien was given, and that as there can be no lien upon a county building for materials furnished, so, also, there can be no personal liability established against a county in favor of a party who has furnished materials to a contractor for a public building of the county."
In Fatout v. Board, etc., 102 Ind. 223, 1 N.E. 389 (231), it was held that a mechanic's lien can not be acquired or enforced either for work done or materials furnished in the erection of a public schoolhouse.
The action in Barker v. Buell, 35 Ind. 297, was to enforce a lien. It was held that in order to acquire the lien provided for in the other sections, it was not necessary to give any notice pursuant to section 649. There was no question of...
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