167 Ind. 36 | Ind. | 1906
Appellee, as plaintiff below, commenced this action in the Grant Circuit Court against the Matthews Drilling Company, George N. Catterson, Joseph W. Littler and William H. Huffman to enforce a mechanic’s lien under §7255 Burns 1901, Acts 1899, p. 569, for work and labor performed by him in and about the construction of a
The defendants, other than Littler and Huffman, were defaulted and judgment was rendered against them. The venue of the action was changed to the Wells Circuit Court, wherein the cause was tried by the court
On the evidence introduced the court found in favor of plaintiff for $121.25 and that he was entitled to a foreclosure of the lien involved. Over the separate motions of defendants for a new trial, the court rendered a personal judgment against all of the defendants to the action, and decreed that the lands described in the complaint, together with drilling machine, gas-and-oil wells, and all pipes, tubing and casting connected therewith he sold, by the sheriff in like manner as lands and property are sold on an execution at law. The proceeds arising out of said sale were ordered to be applied by the sheriff in payment and satisfaction of the amount due plaintiff, principal, interest and costs. From this judgment defendants Littler and Huffman prosecuted a term-time appeal to the Appellate Court.
The record does not disclose that either of appellants moved for a modification of the above judgment and decree. Each has assigned several alleged errors, but the only question discussed by their counsel and urged for a reversal of the judgment is that the decision of the trial court is not sustained by sufficient evidence and is contrary to law. The record shows that appellee on the trial testified as a witness in his own behalf, and the following is substantially the material facts proved by the evidence.
A certified copy by the county auditor of certain transfers of real estate was introduced in evidence for the purpose of proving that appellant Joseph W. Littler was the owner of the real estate upon which the gas-and-oil well in controversy was located. . A certain contract, or lease, was introduced in evidence. This instrument bears date of October 15, 1896, and was entered into by and between Joseph W. and Sarah E. Littler and William A. Walley, whereby said Littlers sold and assigned to said Walley all of the gas and oil in and under a certain tract of land in Grant county, Indiana, described as the east half of the southeast quarter of section twenty-eight, township twenty-three north, range nine east. The right is therein granted to said Walley to enter upon said land at all times for the purpose of drilling and operating for gas, oil or water, with the right and privilege of doing all and singular that which is necessary for said purpose, etc. This lease appears to have been duly recorded in the recorder’s office of Grant county, Indiana. On October 31, 1896, said Walley made the following assignment of said contract, or lease:
“For value received I hereby sell, assign and transfer to the Consumers Gas Trust Company all of my right, title and interest in and to the within lease.
William A. Walley.”
This assignment was duly acknowledged before a notary public on October 31, 1896, and was recorded in the
It is certainly manifest that it is, for several reasons, insufficient to sustain the decision of the trial court. As previously shown, the complaint, after averring that Joseph W. Littler on January 14, 1904, was, and still is, the owner in fee simple of the real estate described, then proceeds to allege that on said date the defendant William H. Huffman, “operating under an oil-and-gas lease from said owner, Joseph W. Littler, contracted with George N. Catterson and the Matthews Drilling Company to drill a gas- and-oil well on the above-described lands;” that on said January 14 George N. Catterson employed the plaintiff at and for the price of $4.50 per day to work in constructing the aforesaid well. The principal theory of the complaint appears to be to enforce or foreclose a mechanic’s lien against the lease-hold interests of Huffman, which the latter acquired in the lands under the lease from the Littlers, but the evidence in the case wholly fails to prove that Huffman owned or had any interest whatever, by lease or otherwise, in the lands or other property upon which it was sought to enforce the lien in controversy.
The evidence shows that Joseph W. and Sarah E. Littler executed the gas-and-oil lease upon these lands to William A. Walley, and that he subsequently assigned and transferred all of his interest, right and title in and to. the lands to the Consumers Gas Trust Company, which company, so far as the evidence discloses, is still the owner and holder of said lease under this assignment. There is absolutely no evidence tending to show that Huffman in any manner succeeded to any of the interests or rights under the lease to said premises from the Consumers Gas Trust Company, or any other person; or, in other words, there is an entire absence of any evidence to show that he, at the time he let the contract to Catterson and the Matthews
It cannot he asserted that the complaint under the facts therein alleged seeks to secure, in addition to a foreclosure of the lien, a personal judgment against either of appellants herein. The evidence is so clearly insufficient to establish the right of appellee either to a personal judgment or a decree foreclosing the lien in controversy as against appellants that nothing in reason can he said to the contrary.
Eor the insufficiency of the evidence the judgment of the lower court, so far as it affects appellants, or either of them, is in all things reversed, and the cause is remanded with instructions to grant each of the appellants a new trial, and for further proceedings not inconsistent with this opinion.