Leeper v. Myers

• Citation: 37 N.E. 1070,10 Ind.App. 314
• Parties: LEEPER v. MYERS.
• Decision Date: 21 June 1894
• Court: Court of Appeals of Indiana

10 Ind.App. 314

37 N.E. 1070

LEEPER

v.MYERS.

Appellate Court of Indiana.

June 21, 1894.

Appeal from circuit court, Clark county; C. P. Pergeson, Judge.

Action by Peter F. Myers, surviving partner, against Stella B. Leeper. From a judgment for plaintiff, defendant appeals. Affirmed.

M. Z. Stannard, for appellant. J. K. Marsh and Burtt & Taggart, for appellee.

DAVIS, J.

The complaint in this case is in two paragraphs. The first paragraph is to enforce a mechanic's lien under the provisions of sections 7255, 7257, Rev. St. 1894. It is alleged, in substance, in the second paragraph, that in October, 1890, appellant became indebted to Henry Pollock, for work and labor done by him in the building, altering, and repairing of a dwelling house, in the sum of $978.54, and that the said Pollock was then indebted to appellees in that sum for material furnished by them to him, and which was used in the construction of said house and making said alterations and repairs, and that it was then agreed by and between said Pollock, the appellees, and appellant that she should withhold, and not pay to him, the said sum, but that she would pay the same to the appellees for and on account of the sum due them from him for said material, and that appellant promised and agreed with appellees, with the consent of said Pollock, that she would pay to them the said sum so due said Pollock, and that appellees then accepted the said promise and agreement of appellant to pay the same, and released said Pollock from further liability on account thereof, etc. Kelso v. Fleming, 104 Ind. 180, 3 N. E. 830. Separate demurrers to each paragraph of the complaint were overruled. An answer of general denial and judgment was filed. A trial by the court resulted in finding and judgment against appellant, on first paragraph of the complaint, for $664, and on second paragraph of complaint for $393.68. The motion of appellant for a new trial was overruled. Appellant reserved proper exceptions to the adverse rulings of the court. The only errors discussed are: (1) That the court erred in overruling the demurrer to the first paragraph of the complaint; (2) that the court erred in overruling the demurrer to the second paragraph of the complaint; (3) that the court erred in overruling appellant's motion for a new trial.

It is contended by counsel for appellant that the averments in the first paragraph of the complaint as to the filing and recording of the notice do not show a proper compliance with the statute. The averments show that the notice was duly filed in the recorder's office, as required in section 7257, supra, but the exhibit filed with this paragraph discloses that it was recorded in the mechanic's lien record. Section 7258 provides that the recorder shall record the notice in the miscellaneous record book. Therefore, it is insisted that no lien attached. All appellees were required to do, in relation to the notice, was to file it in the recorder's office, in compliance with the provisions of section 7257, supra. The failure of the recorder to record the notice in the right book does not necessarily, of itself, as between the parties thereto, defeat the lien. Wilson v. Logue, 131 Ind. 191, 30 N. E. 1079. The lien was created by filing with the recorder notice of the intention to hold a lien, and not by the recording of the same. Wilson v. Hopkins, 51 Ind. 231.

It is next urged that the first paragraph of the complaint is insufficient, because it does not show that the material mentioned was actually used in the construction and repair of appellant's house. In order to acquire a lien for materials, it must be shown that the materials were furnished for and were actually used in the building. Section 7255, supra; Jones v. Hall (Ind. App.) 35 N. E. 923. It is alleged that appellee “sold, delivered, and furnished to one Henry Pollock, a contractor, at his special instance and request, lumber and other building material, to be used for and in the erection, alteration, and repair of said house,” etc., and that they notified appellant “that they were furnishing the said lumber and other materials as aforesaid to the said Pollock for the purpose aforesaid,” etc., and that a bill of particulars of the “lumber and material so furnished...