43 Ind. App. 626 | Ind. Ct. App. | 1909
Appellee sued appellant on an account for work and labor. The complaint is in one paragraph, and alleges that appellant is indebted to appellee in the sum of $141.75 for work and labor done for the appellant by appellee at the special instance and request of appellant. Appellant answered in three paragraphs: (1) General denial; (2) former adjudication; (8) that prior to the commencement of this action the debt sued upon in appellee’s complaint was extinguished and placed in judgment; that previously appellee instituted suit on said debt in the Wells Circuit Court against one Demming and appellant, in which suit appellee asked and sought a personal judgment upon said debt against said Demming; that said suit was upon the express promise of said Demming, and appellee also sought to foreclose a mechanic’s lien against appellant, which appellee asserted in said suit was a lien securing said debt; that appellant and Demming were both duly served with process and both appeared; that said cause was duly tried and a finding duly entered therein, giving to appellee a personal judgment against Demming, as sought and prayed for, for the full amount of said claim, and rendering judgment at the same time in favor of appellant on the issues joined between said appellee and appellant, which judgment is still in force. Appellee replied to the second paragraph of answer in two paragraphs: (1) By general denial; (2) admitting that he brought suit as mentioned in said paragraph of answer, but averring that the complaint in said action was for the sole purpose of enforcing a mechanic’s lien against appellant’s property. Appellee replied by general denial to the three paragraphs of appellant’s answer.
The only error assigned and discussed is the error of the court in overruling appellant’s motion for a new trial.
Upon the trial it was shown that in September, 1904, appellee filed a complaint in the Wells Circuit Court against N. J. Demming and appellant, which averred that on June 1, 1904, defendant Demming was engaged in the construction of oil-wells in said county; that the defendant (appellant here) is the owner of an oil lease on the lands of one Johnson, describing the same, and employed defendant Demming to construct oil-wells thereon; that said Demming employed plaintiff (appellee) to assist in the drilling of what is known as oil-well number eight; that in pursuance of said agreements said plaintiff had labored as a driller for thirty-one and one-half days, at the agreed price of $4.50 per day, in drilling said well number eight; that on July 7 defendant Demming delivered to plaintiff a written statement of said labor, showing the amount and the time said plaintiff had labored and the amount due therefor; that on said date said plaintiff filed in the recorder’s office a notice of his intention to hold a lien on said well, copy of said notice being made part of said complaint; that said notice was duly recorded and said sum remains unpaid, the prayer of the complaint being that plaintiff demands judgment for $........ as payment of said claim, and that said lien be foreclosed and said lands sold in satisfaction of said claim, and for all other proper relief.
The notice of a mechanic’s lien filed with the complaint is addressed to N. J. Demming and appellant, and states that plaintiff intends to hold a mechanic’s lien upon the oil-well, describing it, to cover a claim for $141.75 for work and labor done in the drilling of said well, which work and labor was done and performed at the special instance and request of N. J. Demming. To this complaint appellant in
Judgment'reversed, with instructions to grant a new trial.