Pierce v. Blair

• Decision Date: 09 October 1924
• Docket Number: No. 11913.,11913.
• Citation: 144 N.E. 842
• Parties: PIERCE v. BLAIR et al.
• Court: Indiana Appellate Court

144 N.E. 842

PIERCE

v.BLAIR et al.

No. 11913.^*

Appellate Court of Indiana, Division No. 1.

Oct. 9, 1924.

Appeal from Superior Court, Vanderburgh County; Edgar Durre, Judge.

Action by George Pierce against John Blair and others. From a judgment denying the right of plaintiff and certain defendants to liens against property of defendant Blair and another, and sustaining liens of other defendants, plaintiff and certain defendants appeal. Affirmed as to some defendants, and reversed as to appellants, with directions.

U. W. Youngblood, of Boonville, M. R. Tweedy, of Evansville, and Philip Lutz, Jr., of Boonville, for appellants.

Phelps F. Darby, John D. Welman, and Daniel H. Ortmeyer, all of Evansville, for appellees.

ENLOE, C. J.

The appellant, George Pierce, as plaintiff, commenced this action, seeking thereby to have an alleged lien for wages due him for labor in a coal mine foreclosed on certain described property. A large number of other persons, also coal miners, were made defendants, as were also a number of other persons who claimed to have liens upon said property. Cross-complaints were filed by the persons named as defendants claiming to have liens upon said property-the miners for wages earned, the materialmen for materials furnished, a judgment creditor of the former owner of said mine to enforce his judgment lien, and the City National Bank of Evansville, Ind., as trustee for certain bondholders under a mortgage executed by the Possum Ridge Coal Company, the former owners of said coal mine.

Pending this action, said property sought to be subjected to said lien was placed in the hands of a receiver, who was, by the court, ordered to sell the same, free of all liens; the decree providing that the liens of the several parties to this suit, if any such liens were finally established, should attach to the funds derived from such sale.

The issues being closed, the matters in controversy in this case were submitted to the court for trial. The court found for the several persons, claiming money due as wages and also for said materialmen, and rendered a personal judgment in their favor against John Blair and Louis E. Fricke, the persons in charge of said mine and operating the same at the time said labor was performed, and said material furnished, but denied their right to any lien as against said property. The liens asserted by said bank, and by said judgment creditors, were sustained, and there was a decree accordingly, from which, after motions for a new trial had been overruled, this appeal is prosecuted. The appellants Pierce and Summers have each separately assigned as error the overruling of his motion for a new trial; the appellants Donnelly et al. have assigned as error (a) the overruling of their separate and several demurrers to the second paragraph of answer of the appellees Jeppe and Lowry Bertelsen, and (b) the overruling of their motion for a new trial.

The following historical statement will be helpful in arriving at an understanding for the real contention of the parties:

On the 25th day of September, 1917, the Possum Ridge Coal Company, a corporation, was the owner and in possession of the coal mine in question. On that date it executed a mortgage to the City National Bank of Evansville, Ind., trustee, to secure the payment as they should severally become due, of certain bonds of said coal company, aggregating $75,000. In 1920 said coal company by a conditional bill of sale transferred said property to appellees Louis E. Fricke and John H. Blair, who took possession of said property and continued to operate the same until March 1, 1921, when they transferred their interest in the same to the Fricke & Blair Company, a corporation, which operated the mine until March 1, 1922, when, by reason of a breach in terms of said contract of sale, a forfeiture was declared, and said Possum Ridge Coal Company again took possession of said property. On the 15th day of September, 1922, the Possum Ridge Coal Company assigned all its interest in and to said...