Watts v. Sweeney

• Decision Date: 31 January 1891
• Citation: 26 N.E. 680,127 Ind. 116
• Parties: Watts et al. v. Sweeney et al.
• Court: Indiana Supreme Court

127 Ind. 116

26 N.E. 680

Watts et al.

v.Sweeney et al.

Supreme Court of Indiana.

Jan. 31, 1891.

Appeal from circuit court, Harrison county; W. T. Zenor, Judge.

W. N. & R. J. Tracewell, for appellants. M. Z. Stannard, for appellees.

OLDS, C. J.

On September 12, 1883, the Louisville, New Albany & Corydon Railway Company, for the purpose of securing the payment of its negotiable bonds and interest coupons thereto attached, executed to appellants a mortgage upon its real estate, its road, and its equipments, including an engine called “Samuel J. Wright,” which mortgage was on said day recorded in the office of the recorder of Harrison county, Ind., in Record No. 12. On August 4, 1887, appellants filed in the Harrison circuit court their complaint for the foreclosure of the mortgage, making defendants to said action, among others, the appellees Sweeney & Sweeney. Appellees, Sweeney & Sweeney, filed an answer to the complaint, and also filed a cross-complaint. Appellants then dismissed their complaint as to Sweeney & Sweeney. Issues were joined between the appellees and appellant Watts, trustee, upon the cross-complaint, and a trial was had, and judgment rendered upon the cross-complaint in favor of the appellees. The following errors are assigned: (1) That the court erred in overruling the separate demurrer of the appellants to the first paragraph of the cross-complaint of the appellees. (2) The court erred in sustaining the demurrer of the appellees to the plea in abatement filed by appellants to the cross-complaint of the appellees. (3) The court erred in sustaining the demurrer of the appellees to the second paragraph of the separate answer of the appellants to the cross-complaint of appellees. (4) The court erred in overruling the separate motion of appellants to separately docket and try the cross-complaint of appellees. (5) The court erred in overruling the motion by appellants for a new trial on appellees' cross-complaint. (6) The cross-complaint of appellees does not contain sufficient facts to constitute a cause of action against appellants.

It is alleged in the cross-complaint “that on the 15th day of May, 1885, and for three years prior thereto, and ever since said date, the appellees, Sweeney and Sweeney, were and had been engaged, under the firm name of M. A. Sweeney & Brother, in running and operating a foundry and machine-shop at the city of Jeffersonville, county of Clark and state of Indiana, for the purpose of building and repairing engines, locomotives, and other machinery for railroad companies, steam-boat companies, and the general public; that they admit the execution of the mortgage to the plaintiff in trust, as in his complaint herein set forth and declared; and that the same was for the uses and purposes therein mentioned. It is further admitted that the conditions of said mortgage were broken by non-payment of interest upon the bonds referred to and secured thereby, and at the time therein set out; and that then and there, and by reason thereof, the plaintiffs became entitled to the possession of all the personal property covered by said mortgage, including the said engine and tender number one, (1,) and named the ‘Samuel J. Wright;’ but the defendants aver that, notwithstanding the premises, the plaintiffs permitted their co-defendant, the Louisville, New Albany and Corydon Railway Company, the mortgagor thereof, to continue to hold, use, and operate the railroad, machinery, and rolling stock named in said mortgage (including said engine and tender) for a long time after the same became forfeited as aforesaid, to-wit, for more than two years thereafter; that during all of said time, by the consent of the plaintiffs, and to enable said mortgagor to pay the principal and interest of the debt secured by said mortgage, said co-defendant was allowed to remain so in possession and control of and operate the said railroad, and to run the said locomotive engine and tender; that by reason of such use of said engine and tender, in the manner and for the purposes aforesaid, the same became worn out, broken, out of repair, and of no service to the plaintiffs or said mortgagor for the purpose aforesaid; and in order to render said engine and tender fit for use, the same being then and there the only locomotive engine and tender owned by the plaintiffs or said mortgagor, and to be used in operating said mortgaged railroad, and thereby to earn the means of liquidating said debt and interest, repairs became necessary thereto; that said Louisville, New Albany and Corydon Railway Company, while so possessing and operating said railroad, locomotive engine, and tender, intrusted the said engine and tender to the appellees as machinists and mechanics at their said place of business,at the said city of Jeffersonville, to the end that the same might be by the said firm, as such mechanics, overhauled, repaired, altered, remodeled, and rendered fit for use; that while said engine and tender were so intrusted to them, and under their care and control, and in their custody, for the purposes aforesaid, they, as such firm, at the special instance and request of said mortgagor, expended and bestowed a large amount of money, to-wit, eleven hundred and sixty-three dollars and 56-100 dollars, in providing material and labor in and about the necessary repairs, refitting and rendering fit for service the said engine and tender, thereby imparting increased value thereto in said sum; that the repairs so made by these cross-complainants were necessary to be done, and the amount so expended was a reasonable charge for such repairs. It is further averred that long before the commencement of this suit the said repairs upon said engine and tender were completed, and their said reasonable charge for the same became then and there due; yet the same was not paid, and said engine and tender taken away, nor were said charges paid or tendered to said cross-complainants, or any one for them; that the said charges for said repairs became due and payable to these cross-complainants on the 15th day of July, 1885; that after six months had elapsed from said last-named date, to-wit, on the 27th day of March, 1886, these cross-complainants, for the purpose of paying and satisfying these said charges, the same not having previously been paid, sold the said locomotive engine and tender at public auction on Pearl street, between Court avenue and Maple street, in the city of Jeffersonville, Clark county, state of Indiana, for cash, at the hour of ten o'clock a. m., on the 27th day of March, 1886, the same not being susceptible of division without injury thereto; that said articles exceeded in value the sum of ten dollars, and before making said sale said cross-complainants, as such mechanics, gave public notice of the time, place, and terms thereof by advertisement for three weeks successively next before said sale in the National Democrat, a weekly newspaper of general circulation printed and published in said county of Clark, the same being the county in which said articles were so repaired and sold; that said cross-complainants, being the highest and best bidders therefor, became the purchasers of the said engine and tender, and have ever since said time owned, held, and possessed the same in pursuance of said sale and purchase; that said plaintiffs and the cross-complainants' co-defendant each claim to own some interest in said property by virtue of a mortgage filed with plaintiffs' complaint, and sought to be foreclosed in this action, a copy of which is filed herewith,...