Olejniczak v. Indiana Lumber Mfg. Co.

• Decision Date: 07 April 1922
• Docket Number: No. 11285.,11285.
• Citation: 78 Ind.App. 168,135 N.E. 6
• Parties: OLEJNICZAK v. INDIANA LUMBER MFG. CO.
• Court: Indiana Appellate Court

78 Ind.App. 168

135 N.E. 6

OLEJNICZAK

v.INDIANA LUMBER MFG. CO.

No. 11285.

Appellate Court of Indiana, Division No. 2.

April 7, 1922.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by John Olejniczak, administrator of the estate of George Leda, deceased, against Apolonia Lodyga, in which the Indiana Lumber Manufacturing Company intervened, claiming a mechanic's lien upon the property. From a judgment sustaining the lien of intervener, plaintiff appeals. Affirmed.

Geo. A. Kurtz, of South Bend, for appellant.

Alfred E. Martin and Arthur L. Gilliom, both of South Bend, for appellee.

NICHOLS, J.

Action by appellant filed on December 27, 1915, to set aside a fraudulent conveyance of real estate made by the decedent in his lifetime to his sister, Apolonia Lodyga, by warranty deed which was recorded, and to sell the same for the purpose of converting it into assets of the estate to pay debts. No lis pendens notice was filed by appellant until November 29, 1917. The conveyance was set aside, and an order of sale entered on January 3, 1918, which was more than two years after the action was begun. On January 16, 1918, which was before the sale, appellee filed a petition to intervene for the purpose of setting up its mechanic's lien upon the real estate involved, and to have the same heard and determined, and thereafter filed an amended, verified, intervening petition in which it was alleged in substance that appellee furnished material and labor and remodeled the house and buildings on the real estate involved in the fall of 1917, which material and labor was of the value of $1,007.80; that at the time of the furnishing of such material and labor the title to the real estate was in said Apolonia Lodyga; that within 60 days appellee filed its mechanic's lien, and also filed its action to foreclose the lien, and made appellant a party thereto; that appellee was not made a party to appellant's action to set aside the fraudulent conveyance and to sell to pay debts, but that appellant at the time his order of sale was entered knew that appellee claimed to hold a lien upon such real estate, but did not make it a party to the proceedings; that appellee did not know until after it had furnished the work and material that the administrator's decedent was the real owner of the property in question, but relied upon the statements of Apolonia Lodyga that she was the real owner, and the deed records so disclosed that she was such owner; that, relying upon such representations and records, appellee furnished the material and labor; that the rights of appellee will be irreparably injured unless the order of sale is set aside, and it be permitted to set up its rights.

[1] There was a demurrer to this petition, which was overruled, and this ruling of the court is assigned as one of the errors of which appellant complains. We hold that the petition to intervene was sufficient. Such petitions need not be as formal as complaints, and are...