47 Ind. App. 600 | Ind. Ct. App. | 1911
— This suit was brought by appellee upon an alleged oral contract to furnish the material for and to drill and construct a well upon the real estate of appellant, and for foreclosure of a mechanic’s lien. The court found for appellee for $142.45 and $25 attorneys’ fees, rendered a personal judgment against appellant for $167.45, and also entered a decree for foreclosure of the lien against appellant’s real estate. Prom this judgment and decree appellant appeals, and has assigned as error the insufficiency of the first paragraph of complaint and the overruling of appellant’s demurrer thereto, also the overruling of the motion for a new trial, which alleged that the finding and judgment of the court were contrary to law.
It is therefore ordered that the decree of foreclosure be reversed, and that the personal judgment be affirmed, if within sixty days appellee shall enter a remittitur for $25, as of the date of the original judgment. Otherwise the judgment is reversed, with instructions to the lower court to sustain appellant’s motion for a new trial, and for further proceedings in accordance with this opinion.