Smail v. Indianapolis Mortar & Fuel Co.

Indiana Court of Appeals

Smail v. Indianapolis Mortar & Fuel Co.

90 N.E. 386, 45 Ind. App. 160, 1910 Ind. App. LEXIS 167

CourtIndiana Court of Appeals

DecidedJanuary 12, 1910

DocketNo. 6,943

StatusPublished

Cited by1 cases

This text of 90 N.E. 386 (Smail v. Indianapolis Mortar & Fuel Co.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smail v. Indianapolis Mortar & Fuel Co., 90 N.E. 386, 45 Ind. App. 160, 1910 Ind. App. LEXIS 167 (Ind. Ct. App. 1910).

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Opinion

Roby, J.

This suit is for the foreclosure of a mechanic’s lien. The Indianapolis Mortar and Fuel Company, the Dalton Lumber Company and Joshua M. Moore filed cross-complaints, in which they each claimed and sought to foreclose a mechanic’s lien upon the real-estate described in the complaint, and the Parnell Building and Loan Association filed its cross-complaint for the foreclosure of a mortgage held by it thereon.

Each of these parties averred that the liens of the others were junior and subordinate. Issues were formed, and upon request the court made a special finding of facts and stated conclusions of law thereon, fixing the priority of the various liens to which it found the parties entitled.

1. [162]*1622. [161]*161The court found, in addition to facts upon which the liens claimed by the various parties depend, that Joshua M. Moore, in order to induce the building and loan association to make a loan to the owner of the lot and building thereon, executed a written waiver of his right to a lien. It is claimed that this finding is without the [162]*162issue, and must be disregarded, and that therefore the eonelusion of law subordinating the claim of said Moore was unwarranted. There are two reasons why this position is untenable: (1) The finding is not outside the issue, but was pertinent to the priority claimed by the several parties in their respective cross-complaints, being indeed the finding of a fact essential to the correct determination of that issue; (2) the result reached is absolutely correct, and when that is the ease there can be no reversal. §700 Burns 1908, §658 R. S. 1881.

3. Appellant Smail, who was the owner of the real estate upon which said liens were foreclosed, filed an affidavit for a change of venue. The record shows that such motion was both overruled and sustained. The appellants’ brief does not conform to the rules of this court, and in the state of the record such failure furnishes a sufficient reason for refusing to consider the point made.

The judgment is affirmed.

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Roby, J.

This suit is for the foreclosure of a mechanic’s lien. The Indianapolis Mortar and Fuel Company, the Dalton Lumber Company and Joshua M. Moore filed cross-complaints, in which they each claimed and sought to foreclose a mechanic’s lien upon the real-estate described in the complaint, and the Parnell Building and Loan Association filed its cross-complaint for the foreclosure of a mortgage held by it thereon.

Each of these parties averred that the liens of the others were junior and subordinate. Issues were formed, and upon request the court made a special finding of facts and stated conclusions of law thereon, fixing the priority of the various liens to which it found the parties entitled.

1. [162]*1622. [161]*161The court found, in addition to facts upon which the liens claimed by the various parties depend, that Joshua M. Moore, in order to induce the building and loan association to make a loan to the owner of the lot and building thereon, executed a written waiver of his right to a lien. It is claimed that this finding is without the [162]*162issue, and must be disregarded, and that therefore the eonelusion of law subordinating the claim of said Moore was unwarranted. There are two reasons why this position is untenable: (1) The finding is not outside the issue, but was pertinent to the priority claimed by the several parties in their respective cross-complaints, being indeed the finding of a fact essential to the correct determination of that issue; (2) the result reached is absolutely correct, and when that is the ease there can be no reversal. §700 Burns 1908, §658 R. S. 1881.

3. Appellant Smail, who was the owner of the real estate upon which said liens were foreclosed, filed an affidavit for a change of venue. The record shows that such motion was both overruled and sustained. The appellants’ brief does not conform to the rules of this court, and in the state of the record such failure furnishes a sufficient reason for refusing to consider the point made.

The judgment is affirmed.

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Bluebook (online)

90 N.E. 386, 45 Ind. App. 160, 1910 Ind. App. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smail-v-indianapolis-mortar-fuel-co-indctapp-1910.

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