144 Ind. 614 | Ind. | 1896
This was an action by the appellee, The McElwaine-Riehards Company, against the appellants, The Premier Steel Company, John E. Mc-Gettigan, receiver for that company, and others, and its object was to enforce a materialman’s lien against the property of said Premier Steel Company. Special findings, with conclusions of law, and a motion to modify the judgment present the questions here assigned on behalf of the appellant. The facts so specially found were that the appellant, The Premier Steel Company, had been engaged in the manufacture of steel blooms, billets, and railroad iron, and had been experimenting in various methods of making steel until May 6,1893, when McGettigan was appointed receiver; that said company’s business was conducted in “one Bessemer mill; one open hearth mill; one machine shop; one foundry; one old iron rail mill; hydraulic pump, etc., and one steel mill,” all upon real estate owned by said company, held within one in
Judgment was rendered for appellee extending a lien upon said real estate and upon “all buildings, improvements, mills, shops, engines, boilers, machinery, furnaces, tools, implements, fixtures, rights-of-way, franchises, railroads, railroad tracks, switches, side tracks, appendages and appurtenances, in, upon, or belonging to or connected with said real estate.” The sale of said property was ordered, with directions to apply the proceeds, 1st, to the costs in this case, and of the sale; 2d, appellee’s judgment with interest; 8d, balance returned into court. It was also declared that “The purchaser at said sale shall take, as against the parties to this action, a clear title to said real estate.”
It is first urged that, though the materials supplied may have been used in the repairs and improvements of the company’s buildings, it was essential to the maintenance of a lien that they should have been supplied for the purpose of being so used. That is to say, that the appellee supplied them, at the time contem
It is next claimed that the conclusions of lav/ were “erroneous for the reason that it is not shown for what buildings the materials were furnished, nor in what buildings they were used, while it is shown that several of the buildings were separate and independent, and yet the lien was taken, not only on all the buildings, but also on vacant lots across the street.” While the notice of lien described other lots than those covered by the plant, the lien as adjudged by the court did not include such lots. It is not claimed for appellants that to include in the notice of such lien more land than the lien could be maintained upon would vitiate the lien, and we observe no good reason in such a claim. But that the lien was extended to all of the buildings raises a question of greater moment. The following is quoted, by counsel, from Jones on Liens, sections 1310, 1311, as stating the correct rule: ‘ Where materials are furnished for one or more of several buildings upon a large tract of land, used together in the general business of a manufacturing firm or corporation, a mechanics’ lien must be filed against the particular building or buildings only to which the materials were supplied and the lots and curtilages appurtenant thereto; but not against the entire premises, including the old buildings as well as the new.”
We have no occasion to discuss here the rule with reference to the improvement of one of a number of buildings upon a large tract of land, as the repairs of
It is objected also that the findings having disclosed the furnishing of materials upon separate orders, beginning in October, 1892, and closing in May, 1893, “which constituted independent contracts, yet the notice attempted to include all and was not filed until May 12,1893, much more than sixty days after the materials had been furnished under most of the con
The appellants insist, finally, that the trial court erred in overruling their several motions to modify the judgment directing the sale of the real estate and adjudging that the purchaser take a clear title. This question rests upon the proposition that by the receivership the property was in custodia legis, and that a court, other than that in which the receivership is pending, has no authority to deprive the court having custody of its possession. That this proposition is correct there can be no doubt whatever, but counsel have been unable to find authority on either side of the question as to whether the court in custody surrenders its possession and submits to a decree and sale by granting the lienor permission to sue the receiver. The reason that permission is required doubtless is that the court’s officer may not be involved in constant and expensive litigation, and that the court’s possession-may not be placed in peril by the exercise
In High on Receivers, 3d ed., section 141, it is said: “So extremely jealous are courts of equity of an interference, pendente lite, with the possession of their receivers, that they will not ordinarily permit property which is the subject of the receivership to be sold on ex-cution.” Robinson v. Atlantic, etc., R. W. Co., 66 Pa. St. 160; Skinner v. Maxwell, 68 N. C. 400; Wiswall v. Sampson, 14 How. 52; Edwards v. Norton, 55 Tex. 405; Ellis v. Vernon Ice, etc., Co., 86 Tex. 109 ; Walling v. Miller, 108 N. Y. 173, Thompson v. McCleary, 159 Pa. St. 189. “And while the appointment of a receiver does not destroy existing liens upon the property, it prevents their enforcement by the ordinary legal process, and compels the persons asserting such liens to seek their remedy in the cause in which the receiver is appointed.” Walling v. Miller, supra; Ellis v. Vernon Ice, etc., Co., supra. ‘ ‘ Even though an execution has been levied upon the property before the appointment of the receiver, it is held that there cannot be a lawful sale under such execution without leave of the court appointing the receiver.” Walling s. Miller, supra. “The proper remedy for a judgment creditor who desires to question the receiver’s right to the property, is to apply to the court appointing' him, to have the property released from the receiver’s custody, in order that he may proceed against it under his judgment.” Robinson v. At
Under the rules here declared, the doubtful propriety of ever permitting actions against receivers in courts other than that making the appointment is made manifest, and that the consent of the appointing court to make the receiver a party defendant was not a consent to relinquish the possession and control of the property seems to follow.
In our judgment the consistency of these rules with the objects for which they were designed renders the conclusion necessary that the consent to sue is but for
It is urged by the appellee, upon assignment of cross-error, that its judgment should have been increased by an interest charge from the time the account was found to be due to the date of the judgment. No authority for this contention is cited, and we know of none. The statute, R. S. 1894, section 7045, provides for the allowance of interest “on an account stated from the date of settlement, or on an account closed upon the day an itemized bill shall have been rendered and payment demanded,” but the findings do not bring the claim within these provisions.
The judgment is reversed, with instructions to sustain the appellants’ several motions to modify the judgment.
Note.—A review of the authorities on the right to file a single mechanic’s lien against several buildings is found in a note to Wilcox v. Woodruff (Conn.), 17 L. R. A. 314.