Warren v. Sohn

• Decision Date: 03 November 1887
• Docket Number: 12,909
• Parties: Warren et al. v. Sohn et al
• Court: Indiana Supreme Court

13 N.E. 863

112 Ind. 213

Warren et al. v. Sohn et al

No. 12,909

Supreme Court of Indiana

November 3, 1887

From the Vanderburgh Superior Court.

The judgment is affirmed, with costs.

P Maier, J. S. Buchanan, C. Buchanan and S. B. Vance, for appellants.

A. C Tanner, W. W. Ireland, R. C. Wilkinson and W. H. Gudgel, for appellees.

OPINION

Howk J.

The only error whereon the appellants, defendants below, rely for the reversal of the judgment or decree herein is, that the trial court erred in its conclusions of law upon its special finding of facts.

The facts specially found by the court were substantially as follows:

1. At the times hereinafter mentioned, the "Evansville Echo Mining Company" was a corporation organized pursuant to the laws of Indiana, owning and operating a coal mine in Vanderburgh county, Indiana.

2. On the first day of December, 1883, said mining company executed a mortgage to William Warren, trustee, on the property described in said Warren's cross complaint herein as follows, to wit: All the right, title and interest of said company in a certain leasehold, created by virtue of a lease executed by Herman Wessel on the 27th day of November, 1883, and recorded in lease-record No. 3, pages 352, 353 and 354, of Vanderburgh county, Indiana, as follows, to wit: Lots numbers 27 and 28 of Maxwell's subdivision of the south half of section 17, and the southeast quarter of the southeast quarter of section 18, township 6 south, range 10 west, Vanderburgh county, Indiana; also, the surface of two acres of said lot No. 27, for the shaft and improvements erected and to be erected thereon, said two acres being more particularly described as follows: (Description omitted). Also, all engines, boilers, machinery, tools, appliances, apparatus, buildings and fixtures on said leasehold, and all coal-cars, wagons, horses, mules, rights, credits, franchises and property of every kind and nature, held and owned by said company, to secure the payment of 100 bonds of $ 100 each, payable ten years from their date, with eight per cent. interest payable semi-annually, and coupons were attached for such interest, all payable at the First National Bank of Evansville. By the terms of said bonds, it was provided that, if the interest was not paid when due, then the principal should become due and payable. Said coupons falling due December 1st, 1885, are due and unpaid, although payment thereof has been duly demanded, and the principal thereof remains wholly unpaid. Said bonds are owned and held as follows: Adam Schmidt and Herman Rehrman, each 20 bonds; Herman Wessel and Margaret Mane, each 8 bonds; Koester and Korff, 38 bonds; and John Toranelle, 6 bonds.

3. On the 1st day of May, 1885, said mining company executed a second mortgage on the same property hereinbefore described to Koester and Korff to secure the payment of a promissory note of that date, for the sum of $ 6,738, executed by said company and made payable to the order of said Koester and Korff one year after date, with seven per cent interest payable semi-annually, and, if not paid within thirty days after due, the principal to become due and payable, the amount of the note to bear interest from April 1st, 1885, waiving relief from valuation or appraisement laws, and providing for attorneys' fees. Said note and the interest payable December 1st, 1885, remain due and wholly unpaid, amounting, principal and interest, to the sum of $ 7,052, and $ 352 as an attorney's fee, the total sum being $ 7,404.

4. On the 9th day of July, 1885, Clara Weigel purchased for a valuable consideration and became the owner of 100 shares of the capital stock of said mining company, and remains at this time the owner and holder thereof. This finding shall in no wise prejudice the right of said Clara Weigel in any litigation which may hereafter arise between her and Koester and Korff, or their assigns.

5. During the months of October and November, 1885, the following named miners and other persons, employed and working in and about the coal mine, performed work and labor in and about the mine of said company, situate on the real estate hereinbefore described, and duly filed, in the proper office, notice of their intention to hold a lien for the several amounts due them, and performed all the acts required by section 5471, R. S. 1881, to acquire a lien on the mine, machinery, fixtures, etc., of said mine, for the payment of said amounts due them as aforesaid. No part of said amounts has been paid; and the names and amounts due are as follows, to wit: Benjamin Sohn, $ 76.50. (Here follow the names of forty-six other persons, which, with the sums set opposite their respective names, varying in amount from $ 101 to $ 1.03, we omit.)

6. The following persons performed work and labor, in and about said mine, of the following kind, to wit: By hauling coal from said coal mine to consumers thereof in the neighborhood, part of them using wagons belonging to said mining company, but all of them using their own horses to draw the same; said labor was performed within two months, and due notice of intention to hold lien was filed in the proper office, and said debts remain unpaid, as follows: John Stotefer, $ 12.82; Henry Korff, $ 20.49; John C. Stubbs, $ 26.25, and John Hitch, $ 12.75.

7. Kratz Bros. performed work and labor, in and about said mine, of the following kind, to wit: They removed a pump from said mine and made repairs thereto at their foundry, and replaced and fastened the pump so repaired into the mine, for which there is due them the sum of $ 109.70; and said repairs were made within two months, and for the same they gave due notice of their intention to hold a lien, and recorded the same in the proper office, under the statute mentioned.

8. The following persons were the owners of the land from and under which said mining company took out coal within two months, and gave notice of their intention to hold a lien therefor, and procured the same to be duly recorded in the proper office, and the royalty due the said parties, which remains wholly unpaid, is as follows: Henry Wessel, $ 47.34, and Clara Weigel, $ 74.96.

9. Ten per cent, is a reasonable attorney's fee due said claimants for the several claims described in the fifth, sixth, seventh and eighth findings above written.

Upon the foregoing facts, the court stated its conclusions of law as follows:

"1. Benjamin Sohn and the persons described in the fifth sixth and seventh findings of fact, as above, have and hold the first and paramount lien on the said coal mine, and all machinery and fixtures connected therewith, including scales, coal bank cars and everything used in and about said mine.

"2. The owners of the land described in the eighth finding of fact, as above, have a lien on the same property for the amounts due them as therein mentioned, but said lien is inferior to the claims of Benjamin Sohn et al.

"3. The persons described as bond holders, in the second finding of facts, are entitled to a lien on the mortgaged property for the payment of their debts, but the said lien is subject and inferior to the lien of the mining and royalty claims above described.

"4. The mortgagees Koester and Korff are entitled to a lien on the mortgaged property for the mortgage debt above described in the third finding of facts, but the said lien is subject and inferior to the lien of said bond holders, above mentioned.

"5. And the court further finds, that all the said lien holders are entitled to personal judgments...