107 Iowa 567 | Iowa | 1898
“April 1, 1893. Messrs. The Sioux City Terminal Railroad & Warehouse Company, Sioux City, Iowa — Gentler men: Please pay to the order of the GilletteTTerzog Manufacturing Company $23,190 36-100 (twenty-three thousand one hundred and ninety and.36-100 dollars), in full settlement of my note for $10,000.00, and of their account for material furnished and labor performed'in connection with the structure ironwork for your depot and train shed. E. C. Wakefield.
“This note accepted April 1. George Walter Oakley, Treasurer.”
II. The next two questions that arise are intimately connected: (1) For what amount should Wakefield be allowed a lien? It is not disputed that he is entitled to a lien for some amount, but it is most earnestly insisted on behalf of the Trust Company that the trial court allowed him far more than was due. (2) The next question is one of priority, and arises between Wakefield and those claiming
IV. The Credits Commutation'Company and E. IT. Hubbard, as a grantee in trust of the Terminal Company, and as assignee of the-ITnion Loan & Trust Company, file a cross petition in which they attack the validity of the mortgage
X. These are the controlling points in the case: Some other questions are discussed by counsel, but we do not deem it necessary that they be specially noticed.
XI. Our conclusion upon the whole case is that the Gillette-Herzog Company should have a lien as allowed by the trial court, but that it should rank eleventh in order of priority as the claims are numbered in the decree, and it should have no personal judgment against Wakefield; that Wakefield is entitled to a judgment and lien, as against the Terminal Company, for the sum awarded by the district court, but that only the amount of seventeen thousand four hundred and seventy-five dollars and eighty-seven cents, with
A vigorous assault was made upon the foregoing opinion, in an application for a rehearing, by most of the numerous parties interested. While we do not think it necessary to reopen the case, we have concluded to make certain modifications in the holdings first announced. In the original opinion, the Gillette-TIerzog Company was advanced from the thirteenth to the eleventh place in the list of mechanic’s lien claimants as fixed by the district court. We conclude, upon consideration, that the change was not warranted. The lien is, therefore, reinstated in the place from which we attempted to take it.
Some other matters were pressed by counsel on the application for rehearing, but, as they were urged then for the first time, not having been noticed on the original submission, we can give them no consideration. With the modifications stated, the original opinion will stand.