Jones v. Hall
| Decision Date | 14 December 1893 |
| Docket Number | 1,006 |
| Citation | 35 N.E. 923,9 Ind.App. 458 |
| Parties | JONES v. HALL ET AL |
| Court | Indiana Appellate Court |
J. C Blacklidge, C. C. Shirley and B. C. Moon, for appellant.
J. F Elliott and W. C. Overton, for appellees.
OPINION
Hall, the appellee, brought suit to foreclose a mechanic's lien against the property of appellant, for material furnished to a contractor for use in building his house. There was a trial by the court, and special finding of the facts, with conclusions of law thereon, and exceptions to such conclusions by appellant.
Appellee contends that there is no proper special finding, because it does not appear to have been requested by either of the parties, citing Sheets v. Bray, 125 Ind. 33, 24 N.E. 357, and numerous other cases.
That the special finding must appear to have been requested by one or both the parties, in order that it may be regarded as, and have the legal effect of, a special finding, is undoubtedly true. R. S. 1881, section 551.
From the finding we learn that, "The court, having been requested to find the facts specially, makes the following finding of facts in this cause and conclusions of law thereon."
The special findings are properly signed, duly filed and entered of record.
From this statement, we are of opinion that it fairly and sufficiently appears that the special findings were requested by one or both the parties to the cause. It was the parties alone who had any right to make such a request and control the action of the court. We can not presume that the court was controlled in its conduct by the request of some interloper.
The reasoning and language of Judge ELLIOTT in Trentman v. Eldridge, 98 Ind. 525, are applicable to this case, although not there used with reference to such an objection as is here made.
We think, however, that the language used fits this case as well: "Such a statement shows the request, and where there is a duly authenticated finding in the record, the reasonable presumption is that the request was a proper one, and that it was seasonably made."
Unless made by one of the parties, the request would not be a proper one.
Counsel have not cited, nor have we been able to find, any case wherein our Supreme Court has directly decided the question under consideration. In the absence of any express decision to that effect, we do not feel disposed to extend the cases relied on by counsel beyond the facts on which they are based.
From the facts found, it appears that appellant contracted with one McFann to furnish the materials for, and build him, a house; and "That McFann purchased material from the plaintiff, Joseph R. Hall, to be used, and the same was used, in the erection and construction of such dwelling."
Counsel for appellant insist that this finding does not bring appellee within the statute which gives material men a lien for materials "furnished for" any building.
A long line of decisions of our Supreme Court have established the proposition that to enable a material man to maintain a lien he must furnish the material for the purpose of being used in the building.
In Hill v. Braden, 54 Ind. 72, it is said:
It is not enough that the materials were purchased by the contractor, and actually used in the building. It is necessary that they should have been furnished for the building. The question is not an open one, but has been adjudicated, and the adjudication acquiesced in for many years. City of Crawfordsville v. Barr, 45 Ind. 258; Hill v. Braden, supra; Hill v. Ryan, 54 Ind. 118; Crawford v. Crockett, 55 Ind. 220; Talbott v. Goddard, 55 Ind. 496; City of Crawfordsville v. Brundage, 57 Ind. 262; City of Crawfordsville v. Lockhart, 58 Ind. 477; Hill v. Sloan, 59 Ind. 181; Lawton v. Case, 73 Ind. 60.
Counsel for appellee recognize the existence of the rule,...
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