51 Ind. App. 97 | Ind. Ct. App. | 1912
— Appellee brought this action on an open account to recover the price of certain lumber and to foreclose a mechanic’s lien. The complaint alleges that defendants William L. Davis, Willard W. Hubbard, Walter J. Hubbard and Eugene P. Manns formed a partnership for the purpose of making repairs on a certain described building and conducting a skating rink therein under the name of the Majestic Skating Rink Company; that the lumber, for the price of which this action is brought, was sold and delivered to this partnership. The complaint also contains averments in reference to a lease from the owners of the real estate to defendant Manns for the benefit of the partnership, and also
The judgment appealed from was in favor of appellee and against appellant Hubbard, but the finding and judgment was in favor of all the other defendants.
Appellant moved the court to modify the personal judgment against him, by reducing the same $25, for the reason that plaintiff was not entitled to recover an attorney’s fee against him personally, but was entitled to recover such fee only as against the property on which the lien was foreclosed. It is clear that this motion should have been sustained, and that the personal judgment should have been reduced to $410.31, that being the amount due on the account in suit.
It is insisted by appellee that the error of the court in overruling this motion was harmless, for the reason that the. finding shows that defendant David L. Cook was, in another action, duly appointed receiver of the leasehold interest of Eugene F. Manns who was doing business under the style of the Majestic Skating Rink Company, and that such receiver had sold the leasehold interest and the improvements made thereunder, which are covered by the decree of foreclosure in this action, and that he had received therefor the sum of $495, which money was at the time in the hands of such receiver.
As heretofore stated, the decree provided that the funds in the hands of the receiver should be first applied to the payment of the judgment in this case, and that the balance should be collected from appellant personally.
If, after paying the expenses of his trust and other superior claims, the receiver will have money remaining which can be applied to the payment of this judgment, in obedi
It does not appear from the record in this case, however, that any part of the money in the hands of such receiver has been paid on this judgment, or that any part of it will be available for such purpose. The personal judgment against appellant is $25 more than it should be. This error should be corrected.
It is therefore ordered that the judgment of the lower court be affirmed at the costs of appellee, subject to the condition that appellee will within thirty days from this date enter on the judgment of the court below, as of the date of such judgment, a remittitur of $25, and file the certificate of the clerk of such court with the clerk of this court that such remittitur has been so made, otherwise judgment is reversed at cost of appellee.
Judgment affirmed.
Note. — Reported in 98 N. E. 1011. See, also, under (1) 2 Oyc. 757; (3) 2 Oyc. 758; (4) 3 Cyc. 233; (5) 2 Oyc. 1014; (0) 27 Oyc. 462.