Littler v. Friend
| Decision Date | 21 June 1906 |
| Docket Number | 20,834 |
| Citation | 78 N.E. 238,167 Ind. 36 |
| Parties | Littler et al. v. Friend |
| Court | Indiana Supreme Court |
From Wells Circuit Court; Edwin C. Vaughn, Judge.
Suit by William D. Friend against Joseph W. Littler and others. From a decree for plaintiff, defendants Littler and another appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Reversed.
Dailey Simmons & Dailey, for appellants.
A. R Long, W. H. Eichhorn and G. A. Matlack, for appellee.
Appellee, as plaintiff below, commenced this action in the Grant Circuit Court against the Matthews Drilling Company, George N. Catterson, Joseph W. Littler and William H. Huffman to enforce a mechanic's lien under § 7255 Burns 1901, Acts 1899, p. 569, for work and labor performed by him in and about the construction of a certain gas-and-oil well situated upon the lands described in the complaint. The complaint alleges that on January 14, 1904, the defendant Joseph W. Littler was, and still is, the owner in fee simple of the southeast quarter of section twenty-eight, township twenty-three north, range nine east, in Grant county, Indiana. It is further averred therein that on said day the defendant William H. Huffman, operating under an oil-and-gas lease from said landowner Joseph W. Littler, contracted with the defendants the Matthews Drilling Company and George N. Catterson to drill a gas-and-oil well on said described land. On the aforesaid day the plaintiff and the defendant Catterson entered into a contract by which the plaintiff was employed to work on said well for $ 4.50 per day, which was the reasonable value of his services. The pleading then alleges that the plaintiff continued to work in the construction of the well in question until February 15, 1904, on which date he was discharged by Catterson before the completion of the work which he was performing. The whole amount due and unpaid for his labor or services is $ 96.75. The complaint discloses that within sixty days after performing the labor in controversy the plaintiff filed a notice in writing in the office of the recorder of Grant county, Indiana, declaring therein his intention to hold a lien on the aforesaid described premises and also on the drilling machine situated upon said land and on the gas-and-oil well and all pipes, tubing, etc., connected therewith, for the amount due to him for said work. The employment of attorneys is averred, and judgment is demanded for the amount due, principal, interest and attorneys' fees, and for the foreclosure of a mechanic's lien.
The defendants, other than Littler and Huffman, were defaulted and judgment was rendered against them. The venue of the action was changed to the Wells Circuit Court, wherein the cause was tried by the court upon the issues joined by the separate answers of general denial filed by defendants Littler and Huffman.
On the evidence introduced the court found in favor of plaintiff for $ 121.25 and that he was entitled to a foreclosure of the lien involved. Over the separate motions of defendants for a new trial, the court rendered a personal judgment against all of the defendants to the action, and decreed that the lands described in the complaint, together with drilling machine, gas-and-oil wells, and all pipes, tubing and casting connected therewith be sold by the sheriff in like manner as lands and property are sold on an execution at law. The proceeds arising out of said sale were ordered to be applied by the sheriff in payment and satisfaction of the amount due plaintiff, principal, interest and costs. From this judgment defendants Littler and Huffman prosecuted a term-time appeal to the Appellate Court.
The record does not disclose that either of appellants moved for a modification of the above judgment and decree. Each has assigned several alleged errors, but the only question discussed by their counsel and urged for a reversal of the judgment is that the decision of the trial court is not sustained by sufficient evidence and is contrary to law. The record shows that appellee on the trial testified as a witness in his own behalf, and the following is substantially the material facts proved by the evidence.
Appellee was employed by the defendant Matthews Drilling Company on January 14 to work at drilling a gas-and-oil well on what he, in testifying at the trial, denominated the "Littler farm," which he stated was in section twenty-eight, township twenty-three north, range nine east, in Grant county, Indiana. He testified that he worked twenty-two and one-half days at $ 4.50 per day; that he commenced his work on the well in question on January 14 and continued his work thereon until February 15, on which day he was discharged. The well upon which he worked was known as No. 2. He has received nothing on the amount due him for his work. On February 15, the day on which he quit work, he stated that he had a conversation with appellant Huffman, in which he told Huffman that he "looked to him for his money," and that Huffman in reply told him to file a lien. A copy of the lien which was filed in the office of the recorder of Grant county was introduced in evidence. It was agreed between the parties, in the event appellee was entitled to recover, that $ 25 would be a reasonable sum to be allowed for attorneys' fees.
A certified copy by the county auditor of certain transfers of real estate was introduced in evidence for the purpose of proving that appellant Joseph W. Littler was the owner of the real estate upon which the gas-and-oil well in controversy was located. A certain contract, or lease, was introduced in evidence. This instrument bears date of October 15, 1896, and was entered into by and between Joseph W. and Sarah E. Littler and William A. Walley, whereby said Littlers sold and assigned to said Walley all of the gas and oil in...
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