Pere Marquette R. Co. of Indiana v. Baertz
| Decision Date | 28 April 1905 |
| Docket Number | No. 5,240.,5,240. |
| Citation | 36 Ind.App. 408,74 N.E. 51 |
| Parties | PERE MARQUETTE R. CO. OF INDIANA v. BAERTZ. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, La Porte County; H. B. Tuthill, Judge.
Action by Charles Baertz against the Pere Marquette Railroad Company of Indiana and others. From a judgment for plaintiff, defendant railroad company appeals. Affirmed.
M. T. Kruger, H. W. Magee, and J. F. Gallaher, for appellant. C. R. & J. B. Collins, for appellee.
In the La Porte superior court this action was begun by appellee against appellant and a number of others to enforce payment of 39 claims for work and labor performed by as many different people in the construction of certain abutments, walls, bridges, embankments, and making excavations, etc., for a roadbed and tracks, in the construction of a railroad through La Porte and Porter counties, in this state, by the foreclosure of an alleged mechanic's lien held by appellee, covering appellant's roadbed and right of way, and appurtenances thereto belonging. The facts leading up to, and upon which appellee claims to be the owner of, said claims, as also the proceedings under which he claims to be vested with such lien on appellant's property, appear in the findings of fact.
The cause was tried upon an amended complaint, consisting of two paragraphs; and, as the special findings contain the material facts necessary to present all the material questions of law here arising, we omit a synopsis of the facts as averred in the complaint and briefly state the facts as they appear in the special findings:
(1) That on 24th day of April, 1903, the appellant was a corporation organized under the laws of the state of Indiana, and owned a right of way for a railroad extending from the village of New Buffalo, in the state of Michigan, in a southwesterly direction through the counties of La Porte and Porter, in the state of Indiana, to the village of Porter, in said Porter county, and was in the possession of the same, and was building and operating a railroad over the same.
(2) That on April 24, 1903, appellant entered into a contract with the Marquette Construction Company to grade, build embankments, make excavations, and build bridges, trestlework, works of masonry, and other structures on said right of way, preparatory for appellant's railroad track. That pursuant to the terms of said contract, on the same day, the said Marquette Construction Company sublet said work to McArthur Bros. Company. That subsequently, and pursuant to the said contract between appellant and the Marquette Construction Companyand between the Marquette Construction Company and McArthur Bros. Company, the said McArthur Bros. Company contracted with the Tefft-Ross Engineering Company, a partnership composed of Henry B. Tefft and William C. Ross, for the construction of concrete work and masonry for bridges at certain points in Michigan township, in La Porte county, Ind.
(3) That the said Tefft-Ross Engineering Company commenced and completed said work.
(4) That in accordance with the terms of said contract the Tefft-Ross Engineering Company employed the several defendants in the complaint mentioned as “laborers” in the erection of said concrete work and excavations, who performed work and labor in the erection of said concrete work and excavations in said Michigan township, in La Porte county, of the value of $348.92, which sum was due and payable on the 20th of September, 1903, and is still due and unpaid.
(5) That, after the performing of the said work and labor as aforesaid, said laborers, for a good and valuable and sufficient consideration, assigned and sold to the appellee herein their several claims for said work and labor so done and performed. That plaintiff is the owner of the several claims and of the amount due said laborers, as also all liens and other rights and privileges held by reason of such employment and work so performed, and to which they were entitled by reason of such work and labor. That on account of said assignments there is due appellee, as the assignee of said laborers, $319.92 of principal and $4.36 of interest, making a total due of $353.28.
(6) That within 60 days of the doing of said work by said laborers the appellee filed in the office of the recorder of La Porte county, Ind., his notice to said Pere Marquette Railroad Company of Indiana, and all others concerned, of his intention to hold a lien on the roadbed and right of way, together with all appurtenances thereto belonging, and of the right of way, franchises, and roadbed of said Pere Marquette Railroad Company, situate in La Porte county, Ind. That said notice stated that plaintiff claimed said lien by reason of his being such assignee as aforesaid. That said notice was so filed for record on the 17th of September, 1903, and was duly recorded, and that appellee has been compelled to employ an attorney at a cost of $100.
(7) That said laborers have no titles or interest in said claims or in said liens.
(8) That plaintiff commenced this action on the 24th of September, 1903, and within one year of the filing of the notice of said lien.
(9) That the defendant Pere Marquette Railroad Company of Indiana continues as aforesaid in the possession and ownership of the said right of way and franchises of said railroad company.
(10) “That the plaintiff has and holds a valid and subsisting lien on said right of way and franchises and appurtenances described as aforesaid for the work and labor done and performed respectively by said laborers, as heretofore set out, for the amount of $348.92 and interest and attorney fees.”
(11) “That the said plaintiff is entitled to recover interest on his claim herein from the 20th day of September, 1903, and is entitled to have said lien foreclosed.”
(12) “That the work and labor described as having been performed in these findings is the same work and labor described and alleged as having been performed in the said notice of lien as aforesaid.”
(13) “That the said right of way of said defendant Pere Marquette Railroad Company of Indiana is a part of the right of way and station grounds of the said company, and is used by said company in the prosecution of its business as a common carrier of freight and passengers, and is necessary to the proper and successful operation and conduct of its corporate business as such a common carrier.”
(14)
Upon the above finding of facts the court stated the following conclusions of law:
(1)
(2) “That by reason of the fact that said right of way and franchises are a part of the right of way, franchises, and station grounds of the defendant the Pete Marquette Railroad Company of Indiana, a corporation, and a common carrier of freight and passengers, and is so used, and is necessary to the proper and successful operation of its railroad and the conduct of its corporate business, that the lien aforesaid cannot be foreclosed against the same, and the property sold for the payment of said judgment, without interfering with the rights and interests of the public therein. That the plaintiff is therefore entitled to a personal judgment against the defendant the Pete Marquette Railroad Company of Indiana for the sum of $453.28.
(3)
Upon the conclusions of law thus stated, the court rendered a personal judgment against appellant for $453.28. Thereupon appellant moved to modify said judgment so as to eliminate therefrom all that portion of the same as makes the judgment personal against it, which motion was overruled, and exception reserved. Appellant then filed its motion for a new trial, assigning as reasons therefor (1) that the decision of the court is contrary to law; (2) not sustained by sufficient evidence; (3) that each of the findings of fact is contrary to law; (4) and not sustained by sufficient evidence. This motion was overruled, and appeal prayed and granted.
It might be well here to state that by the averments of the complaint it appears that, at the time of filing the same, the railroad was not completed and not in operation in La Porte county; but this variation as to this allegation in the complaint and the findings of fact on that subject does not affect the first and ruling question here presented, not only by the demurrer to the complaint, but by the motion for a new trial as well. That question is, did the assignors of appellee come within the class of persons entitled to liens as provided by section 7265, Burns' Ann. St. 1901, or, in other words, do they come within the act approved March 6, 1883, as subsequently amended? In giving force to a statute, courts should look to the language used by the lawmaking power as expressive of its will; and where this language is plain and free from ambiguity, and the meaning expressed is definite, a literal interpretation of the statute should be adopted....
To continue reading
Request your trial