Rooker v. Ludowici Celadon Co.
| Decision Date | 21 January 1913 |
| Docket Number | No. 7,783.,7,783. |
| Citation | 53 Ind.App. 275,100 N.E. 469 |
| Parties | ROOKER et el. v. LUDOWICI CELADON CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hamilton County; Meade Vestal, Judge.
Action by the Ludowici Celadon Company against William V. Rooker and others. From a judgment for plaintiff, defendants appeal. Affirmed.William V. Rooker, of Indianapolis, for appellants. Shirts & Fertig, of Noblesville, for appellee.
This is an action by appellee against appellants to foreclose a mechanic's lien. Upon request the court made a special finding of facts, and stated its conclusion of law thereon.
Appellants each filed a motion for a new trial, which was overruled. Exceptions were reserved, both upon the conclusions of law and the overruling of the motion for a new trial. From a judgment in favor of appellee this appeal was prayed and granted.
The motion for a new trial assigned reasons as follows: (1) The finding of the court is not sustained by sufficient evidence; (2) is contrary to law; (3) the court erred in each, the first, second, and third conclusion of law. The errors assigned are: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling each of the separate motions for a new trial.
[1] Under the rule frequently announced and followed, a complaint questioned for the first time, on appeal, will be held sufficient if there is not a total failure to state some essential element of the right of recovery, and facts are stated sufficient to bar another suit for the same cause of action. After verdict or the finding of the court all intendments and presumptions in such cases are in favor of the pleading. The decision of the trial court, or verdict of the jury, cures all other defects, and such complaint is sufficient to support the judgment rendered thereon. Oliver Typewriter Co. v. Vance, 95 N. E. 327.
[2][3] The amended complaint upon which the case was tried, in substance, charges that appellee is a corporation; that appellants are indebted to it in the sum of $465.43 for labor performed and materials furnished by appellee at their special instance and request in the erection of a certain dwelling house upon certain real estate described; that said materials were furnished and labor performed within 60 days next preceding the 28th day of September, 1909; that on said day appellee filed in the office of the recorder of Hamilton county, Ind., a notice of its intention to hold a mechanic's lien for said sum on the dwelling house and real estate so described, “a copy of which is filed herewith as a part thereof”; that appellee holds a lien on said dwelling and real estate for the amount of said debt, which is due and unpaid; that a reasonable attorney's fee for appellee's counsel is $75. Immediately following the complaint is what purports to be a copy of the notice of appellee's intention to hold a lien. It is contended that the complaint is insufficient to warrant a foreclosure, and is bad for want of a bill of particulars; that the exhibit the copy of the lien is not properly identified; that the suit is upon a written instrument other than the notice, and neither the original nor a copy thereof is made a part of the compliant. The last objection does not appear upon the face of the pleading, and is therefore unavailing. The objections are not well taken, for the complaint states facts sufficient to bar another action.
[4] Furthermore, there was a special finding of facts, and under the assignment questioning the sufficiency of the complaint for the first time on appeal all the objections urged are cured by such finding. Kenner et al. v. Whitelock, Rec., et al., 152 Ind. 635, 636, 53 N. E. 232;Searles et al. v. Little, 153 Ind. 432-435, 55 N. E. 93;State B. & L. Ass'n v. Brackin, Trustee, et al., 27 Ind. App. 677-681, 62 N. E. 91;Cummings et al. v. Girton, 19 Ind. App. 248-251, 49 N. E. 360. For the same reason the objection that there is a variance between the description of the real estate in the notice and the complaint is not available.
[5] Furthermore, objections on account of defects in the pleadings that might have been remedied by amendment in the lower court, when raised on appeal, will be deemed to have been so remedied. Ades et al. v. Levi et al., 137 Ind. 506, 37 N. E. 388;City of South Bend et al. v. Turner, 156 Ind. 418-421, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200.
[6] The appellant also contends that the court erred in rendering judgment of foreclosure. It is not claimed that the act of 1909 (page 295) is unconstitutional, but appellant says: “While the General Assembly may affirmatively create liens, it cannot do so by merely presupposing that such liens already exist and accordingly legislating concerning them.” It is argued that both the title and body of the act are...
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