Thomas v. Kiblinger

Indiana Supreme Court

Thomas v. Kiblinger

77 Ind. 85

CourtIndiana Supreme Court

DecidedNovember 15, 1881

DocketNo. 8407

StatusPublished

Cited by3 cases

This text of 77 Ind. 85 (Thomas v. Kiblinger) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thomas v. Kiblinger, 77 Ind. 85 (Ind. 1881).

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Opinion

Bicknell, C. C.

This was a suit to enforce a mechanic’s lien, brought by the appellant, who had furnished materials ■for part of a building, against the defendants as the owners •of the building. The court made a special finding of the [86]*86facts, and stated the conclusions of law separately; the-appellant excepted to the conclusions of law. Judgment was rendered upon the finding, against the defendant John W. Kiblinger, for the amount due, without enforcement of the lien. The plaintiff appealed.

The only error assigned is, that the court erred in its conclusions of law. The conclusions of law were :

1st. That the plaintiff is entitled to recover from the defendant John W. Kiblinger the sum of $22.50, the amount shown to be due on said lumber account.

2d. That the plaintiff is not entitled to enforce his lien for the price of the said lumber, against the building, he-not having filed his notice of intention to hold such lien,, within sixty days after the last item of his account had matured. The appellant insists, that it was sufficient to file-his notice of lien within sixty days after the completion of the building, and that the court erred in holding that the-notice ought to be filed within sixty days after the furnishing of the materials.

But the court was right. It appeared upon the complaint, that the notice was filed more than sixty days after the materials were furnished, and the cause was tried by the court,.' upon a default, in the absence of the defendants. He who-builds a complete or entire building may acquire a lien by filing his notice within sixty days after the completion of the building; but if a man’s work, or materials, go for a. part only of the building, his notice must be filed within sixty days after the work is done, or materials furnished. Hamilton v. Naylor, 72 Ind. 171; Lawton v. Case, 73 Ind. 60. There was no error in the conclusions of law. The judgment of the court below should be affirmed.

Per Curiam. — It is therefore ordered, upon the foregoing-opinion, that the judgment of the court below be, and it is; hereby, in all things affirmed, at the costs of the appellant-

Woods, J., dissents.

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Bicknell, C. C.

This was a suit to enforce a mechanic’s lien, brought by the appellant, who had furnished materials ■for part of a building, against the defendants as the owners •of the building. The court made a special finding of the [86]*86facts, and stated the conclusions of law separately; the-appellant excepted to the conclusions of law. Judgment was rendered upon the finding, against the defendant John W. Kiblinger, for the amount due, without enforcement of the lien. The plaintiff appealed.

The only error assigned is, that the court erred in its conclusions of law. The conclusions of law were :

1st. That the plaintiff is entitled to recover from the defendant John W. Kiblinger the sum of $22.50, the amount shown to be due on said lumber account.

2d. That the plaintiff is not entitled to enforce his lien for the price of the said lumber, against the building, he-not having filed his notice of intention to hold such lien,, within sixty days after the last item of his account had matured. The appellant insists, that it was sufficient to file-his notice of lien within sixty days after the completion of the building, and that the court erred in holding that the-notice ought to be filed within sixty days after the furnishing of the materials.

But the court was right. It appeared upon the complaint, that the notice was filed more than sixty days after the materials were furnished, and the cause was tried by the court,.' upon a default, in the absence of the defendants. He who-builds a complete or entire building may acquire a lien by filing his notice within sixty days after the completion of the building; but if a man’s work, or materials, go for a. part only of the building, his notice must be filed within sixty days after the work is done, or materials furnished. Hamilton v. Naylor, 72 Ind. 171; Lawton v. Case, 73 Ind. 60. There was no error in the conclusions of law. The judgment of the court below should be affirmed.

Per Curiam. — It is therefore ordered, upon the foregoing-opinion, that the judgment of the court below be, and it is; hereby, in all things affirmed, at the costs of the appellant-

Woods, J., dissents.

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77 Ind. 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-kiblinger-ind-1881.

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