71 Ind. App. 122 | Ind. Ct. App. | 1919
— This is an action by appellant against appellee to replevin an automobile truck. The complaint is in a single paragraph, and is in the usual form for such actions. Appellee filed an answer in general denial, and also a cross-complaint against appellant, praying that he'be awarded a judgment for the possession of said truck and for damages. This cross-complaint alleges in substance, among other things, that appellee is engaged in the business of repairing automobiles, selling supplies, and furnishing storage therefor, in the town of Carmel, Hamilton county, Indiana; that one George Fitch, who was the owner of the gasoline automobile truck in question, delivered the same to appellee for the purpose of being repaired; that he made certain repairs thereon, furnished certain supplies therefor, including gasoline, and kept the same in storage, at the request of said Fitch, who promised to pay appellee therefor; that the repairs, supplies and storage were of the reasonable value of $283.29; that he demanded payment of said amount from said Fitch, but he refused to pay the same; that said amount is long past due and wholly unpaid; that within sixty days from the time of furnishing said material and performing the services he filed a notice in writing with the recorder of the county of his intention to hold a lien on the automobile truck for said sum, which notice was duly entered of record in the office of the recorder; that at the time he furnished the material and performed the services, and at the time he so filed the notice, he had and has kept and retained possession of the truck; that subsequently he commenced an action in the Hamilton Circuit Court to foreclose his said lien, and was thereafter award
The only recognized grounds for a new trial set out in appellant's motion therefor are that the decision of the court is not sustained by sufficient evidence, and is contrary to law. On the trial the parties filed a statement of facts, which they agreed should constitute the evidence, the same as if witnesses were present and testified thereto. The following is a substantial statement of the facts so agreed upon: Between October 3, 1916, and March 3, 1917, one George Fitch purchased certain supplies and materials from appellee, and obtained work on .said truck, which supplies, work and labor, and the storage of the truck, amounted to a total sum of $283.29; that on March 5, 1917, appellee-filed in the office of the .recorder of Hamilton county, Indiana, a notice of his intention to hold a lien on said truck, which was duly recorded on said day; that the notice bore date of March 5, 1917, was addressed to George Fitch, and all others concerned, was signed by appellee, and reads as follows:
*125 “You are hereby notified that I intend to hold a Mechanic’s Lien on one Indiana automobile truck bearing engine number 75351, four cylinder motor, said truck being painted yellow, for the sum of $283 and 29/100 Dollars, .for work and labor done, and materials furnished by me in the repair of said truck, which work and labor done, and material furnished, was done and furnished by me at your special instance and request, and within the'last sixty days, and which amount is due and unpaid.”
That under the contract of sale of the truck of said Fitch the title was to remain in appellant until all payments were made, as provided for in the contract of sale; that said Fitch was in default in his payments on the truck before the filing, of this action, and is now in default; that-appellant never made any agreement with either appellee, or said Fitch for any storage, supplies, work, or labor, and did not have actual knowledge of such work; that on March 3, 1917, said Fitch called appellee by telephone, and told him that he could take the truck; that on said day appellee took possession of the truck on the public highway, about two miles south of the town of Carmel, Hamilton county, Indiana, at the request of said Fitch; that.appellee took the truck'to his garage, and has held possession thereof at all times since-; that the charges for storage, supplies and repairs were .not made against appellant, but were made against said Fitch; that, a demand was made by appellant upon said Fitch and appellee for the possession of the truck before the filing of this action, and ■that appellee refused to surrender the possession thereof.
For the reason stated the. judgment is reversed, with instructions to sustain appellant’s motion for anew trial, and for further proceedings consistent with this opinion. .