McTurnan v. Dailey

• Decision Date: 17 May 1938
• Docket Number: No. 27075.,27075.
• Parties: McTURNAN et al. v. DAILEY.
• Court: Indiana Supreme Court

214 Ind. 159

14 N.E.2d 913

McTURNAN et al.

v.DAILEY.

No. 27075.

Supreme Court of Indiana.

May 17, 1938.

Action by Harold R. Dailey against Inez Kelsey McTurnan and others to foreclose a mechanic's lien. From an adverse judgment, defendants appeal.

Reversed, with directions.

Superseding former opinion, Ind.App. 12 N.E.2d 984.Appeal from Montgomery Circuit Court; Edgar A. Rice, Judge.

John C. McNutt, of Martinsville, Foley & Foley, of Crawfordsville, and Lawrence H. Hinds, of Indianapolis, for appellants.

Ristine & Ristine, of Crawfordsville, and Robt. A. Adams and Denny, Adams, Baker & Orbison, all of Indianapolis, for appellee.

SHAKE, Judge.

This is an appeal from a judgment and decree of foreclosure of a mechanic's lien. The appellee contracted with Alice Kelsey, now deceased, for the installation of an oil burner furnace. The contract was in the form of a letter addressed to Mrs. Kelsey at ‘403 S. Water St.,’ Crawfordsville, Ind. It contained no other reference to the location of the property. The notice of intention to hold a lien described by metes and bounds a part of lot 2 in William S. Galey's Heirs First addition to the city of Crawfordsville. The contract and the notice were made exhibits to the complaint and the description of the real estate set forth in the complaint was identical with that contained in the notice. The complaint did not state that the real estate referred to in the contract and that mentioned in the notice and complaint were the same, nor was there any allegation that the work and labor was done and materials furnished on or for the real estate described therein.

There was a demurrer to the complaint, and the memorandum called attention to the absence of any allegation in the complaint that the equipment contracted for was installed in or used on the property described in the notice and complaint. The demurrer was overruled and this is assigned as an independent error.

The complaint was clearly defective. It is essential that a complaint to state that it is essential that a complaint to foreclose a mechanic's lien disclose that the work and labor alleged to have been performed, and the materials claimed to have been furnished, were upon and for the real estate against which the lien is sought to be asserted. City of Crawfordsville v. Brundage, 1877, 57 Ind. 262; City of Crawfordsville v. Lockhart, 1877, 58 Ind. 477; Lawton v. Case, 1880, 73 Ind. 60;Windfall Natural Gas, etc., Co. v. Roe, 1908, 42 Ind.App. 278, 85 N.E. 722.

The error of the court in overruling the demurrer would require the reversal of this cause unless the judgment appealed from can be said to be saved by Burns' 1933, § 2-1013, section 117, Baldwin's Ind.St.1934, which provides...