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with this contention. An order or judgment | further invoke the saving provisions of secwhich has been vacated by an appeal is in tions 243 and 248, Burns' Ann. St. 1901. It is legal contemplation no order, and the statute manifest that section 248, supra, has no apwithout doubt means that only such proceed-plication to any feature of this case, but only ings shall be saved under this clause, as have relates to penalties and forfeitures and kinproceeded to a final order or judgment for the dred liabilities. Section 243, supra, constiestablishment of the ditch, and in which noth- tuted section 2 of an act of 1852 (1 Rev. ing remains but the execution of such judg- St. 1852, pt. 1, c. 92), which was passed ment, A final judgment recovered in the primarily to preserve rights vested and suits courts, vests the owner thereof with such in- instituted under laws repealed by the Legisterests as cannot be arbitrarily taken away, lature of 1852. In the revision of the Statand it was entirely appropriate for the Legis- utes of 1881, similar provisions relating to lature to disclaim any intention to disturb existing rights of action and pending prosuch rights, and to remove all question as to ceedings were enacted. Acts 1881, p. 389, the right to proceed with the construction of

c. 38. In the exercise of the sovereign power ditches so established and the collection of as- of the state, it was the prerogative of the sessments made therefor. It is shown by the Legislature of 1905 to embody the policy of record that an appeal was properly taken the state in such drainage laws as met its from the order of the board of commissioners approval, and to repeal existing laws upon establishing the ditch in controversy, to the that subject, unhampered by any of the statNoble circuit court. This appeal effectually utes mentioned. Costs are given or withheld vacated the judgment of the board of com- by statute, and the right to recover costs missioners. It is true that ordinarily only not already reduced to judgment must cease buch issues may be tried upon appeal as were with the extinguishment of the right of actendered before the board, and it may be that tion to which they are incident. It was the more important questions in this case clearly within the power of the Legislature have been finally disposed of before the to change the laws, and prohibit the drainage board; yet it is by the judgment of the of lakes, even though such change of policy circuit court that this proposed ditch must and prohibitory legislation result in individube established, if it is ever established or al inconvenience, hardship and loss. State constructed. When a final judgment for the

V. Richcreek (No. 20,701, at this term) 77 construction of a ditch is rendered in the N. E. 1085; Chicago, etc., R. Co. v. Illinois circuit court upon appeal, it may be execut- ex rel., 200 U. S. 561, 26 Sup. Ct. 341, 50 L ed by that court, or it may be certified back

Ed. 596. to the board for execution, according to its The law upon which the answer under terms. Sections 7864, 7865, Burns' Ann. St. consideration was based was enacted subse1901; Sharp et al. v. Malia, 124 Ind. 407, quent to the appeal from the board of com25 N. E. 9; Bonfoy v. Goar et al., 140 Ind. missioners, and it was proper for the cir292, 39 N. E. 56; Head et al. v. Doehleman, cuit court to permit the filing of such an148 Ind. 145, 46 N. E. 585; Trittipo V. swer, after the time when ordinarily the Beaver, 155 Ind. 652, 58 N. E. 1034; Inwood issues would have been finally closed. The V. Smith, 156 Ind. 687, 60 N. E. 703.

facts averred therein are sufficient to bar It was also the expressed intent of the

the further prosecution of the proceeding, Legislature to save all pending ditch pro

and the court erred in sustaining appellees' ceedings which had not progressed to final

demurrer to the same. judgment, provided the proposed ditches were The judgment is reversed, with directions not designed to and would not affect lakes

to overrule appellees' demurrer to appellant's of the surface area named. This saving verified paragraph of answer, and for further feature is in accord with the legal principle proceedings in harmony with this opinion. that where new legislation does not destroy a pre-existing right or deny a remedy for its enforcement, but merely modifies the pro

(167 Ind. 36) ceedings, the jurisdiction continues under LITTLER et al. Y. FRIEND. (No. 20,834.) the forms directed by the later act, in so far

(Supreme Court of Indiana. June 21, 1906.) as the two acts are different. Pittsburgh,

1. MINES AND MINERALS-OIL WELL-LIENS. etc., Ry. Co. v. Oglesby et al. (Ind. Sup.) 76 N. E. 165, and cases cited. It is specifically

Where, in an action to enforce a lien for

work and labor performed in the construction of charged in appellant's answer that the pro- a gas and oil well, the complaint alleged that a posed ditch will, if constructed, affect and certain person was the owner in fee simple of .lower the waters of the fresh water lakes

the land on which the work was performed, and

that one of the defendants, operating under an named; four of which are within the pro- oil and gas lease from the owner, contracted tection of the law. It is clear that the legis- with certain other defendants to drill a well, lative purpose was to prevent and probibit

and that the latter defendants employed plainunder penalties, such action and results ;

tiff, no recovery could be had under evidence

that the owners of the land executed a lease al ind, taking the facts alleged as true, it is our the land to a third person, who assigned to a conclusion that this proceeding, although corporation not made a party, and failing to pending, was not saved by any provisions

show that any of the defendants had acquired

the rights of the corporation under the assignof the repealing statute. Appellees' counsel

ment.

2. SAME-CONTRACT WITH PLAINTIFF'S EM- Littler and Huffman, were defaulted and PLOYER.

judgment was rendered against them on deIn an action to enforce a mechanic's lien for work performed in the drilling of an oil

fault. The venue of the action was changed well for one alleged to have a leasehold interest to the Wells circuit court, wherein the cause in the land, no recovery can be had in the ab- was tried by the court upon the issues joined sence of any evidence that the party who em

by the separate answers of general denial filployed plaintiff was ever directed or authorized by the lessee to dig a well.

ed by appellants Littler and Huffman. On [Ed. Note.--For cases in point, see vol. 35,

the evidence introduced the court found in faCent. Dig. Mines and Minerals, $ 239.]

vor of appellee $121.25 and that he was enAppeal from Circuit Court, Wells Coun

titled to a foreclosure of the lien involved. ty; E. C. Vaughn, Judge.

Over the separate motions of appellants for a Action by William D. Friend against

new trial, the court rendered a personal judgJoseph W. Littler and others. From a judg

ment against all of the defendants to the acment for plaintiff, defendants appealed to the

tion, and decreed that the lands described in Appellate Court, from whence the cause was

the complaint, together with drilling matransferred to this court under Burns' Ann.

chine, gas and oil wells thereon and all pipes, St. 1901, § 1337u. Reversed.

tubing, and casting connected therewith be

sold by the sheriff in like manner as lands Simmons & Dailey, for appellants. A. R. and property are sold on an execution at law. Long and Eichhom & Matlock, for appellee. The proceeds arising out of said sale were or

dered to be applied by the sheriff in payment JORDAN, C. J. Appellee, as plaintiff be- and satisfaction of the amount due appellee, low, commenced this action in the Grant circuit principal, interest, and costs. From this court against the Matthews Drilling Com- judgment appellants Littler and Huffman pany, George N. Catterson, Joseph W. Littler, prosecuted a term-time appeal to the Appeland William H. Huffman to enforce a me- late Court. chanics' lien under section 7255, Burns' Ann. The record does not disclose that either of St. 1901, for work and labor performed by appellants moved for a modification of the him in and about the construction of a certain above judgment and decree. Each has asgas and oil well situated upon the lands de- signed several alleged errors, but the only scribed in the complaint. The complaint al- question discussed by their counsel and urged leges that on January 14, 1904, the defend- for a reversal of the judgment is that the ant Joseph W. Littler was and still is the decision of the trial court is not sustained by owner in fee simple of the S. E. 14 of section sufficient evidence and is contrary to law. 28, township 23 N., range 9 E., in Grant coun- The record shows that appellee on the trial ty, Ind. It is further averred therein that testified as a witness in his own behalf, and on said day the defendant William H. Huff- the following is substantially the material man, operating under an oil and gas lease facts proven by the evidence. Appellee was from the said landowner, Joseph W. Littler, employed by the defendant, the Matthews contracted with the defendants the Matthews Drilling Company, on January 14th to work at Drilling Company and George N. Catterson drilling a gas and oil well in what he, in testo drill a gas and oil well on said described tifying at the trial, denominated the “Littler land. On the aforesaid day the plaintiff and Farm,” which he stated was in section 28, the defendant Catterson entered into a con- township 23 N., range 9 E., in Grant county, tract by which the plaintiff was employed to

Ind. He testified that he worked 2212 days work on said well for $4.50 per day, which at $4.50 per day; that he commenced his was the reasonable value of his services. The work on the well in question on January

pleading then alleges that the plaintiff contin- 14th and continued his work thereon until

ued to work in the construction of the well in question until February 15, 1904, on which date he was discharged by Catterson before the completion of the work which he was performing. The whole amount due and unpaid for his labor or services is $96.75. The complaint discloses that within 60 days after performing the labor in controversy the plaintiff filed a notice in writing in the office of the recorder of Grant county, Ind., declaring therein his intention to hold a lien on the aforesaid described premises and also on the drilling machine situated upon said land and on the gas and oil well and all pipes, tubing, etc., connected therewith, for the amount due him for said work. The employment of an attorney is averred, and judgment is demanded for the amount due, principal, interest, and attorney's fees, and for the foreclosure of a mechanic's lien. The defendants, other than

February 15th, on which day he was discharged. The well upon which he worked was known as No. 2. He has received nothing on the amount due him for his work.

On the 15th day of February, the day on which he quit work, he stated that he had a conversation with appellant Huffman, in which he told Huffman that he “looked to him for his money," and that Huffman in reply told him to file a lien. A copy of the lien which was filed in the office of the recorder of Grant county was introduced in evidence. It was agreed between the parties, in the event appellee was entitled to recover, that $25 would be a reasonable sum to be allowed for attorney's fees. 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 succeeded to any of the interests or rights un. contract or lease was introduced in evidence. der the lease to said premises from the Con. This instrument bears date of October 15, sumers' Gas Trust Company, or any other 1896, and was entered into by and between person; or, in other words, there is an enJoseph W. and Sarah E. Littler and one Wil- tire absence of any evidence to show that he, liam A. Walley, whereby the said Littlers at the time he let the contract to Cattersold and assigned to said Walley all of the son and the Matthews Drilling Company gas and oil in and under a certain tract of to drill the well in question, or at any time land in Grant county, Ind., described as the thereafter, had or held any interest or title east half of the S. E. 14 of section 28, town- to the leased premises or was in any manner ship 23 N., range 9 E. The right is therein operating under the lease executed by the granted to said Walley to enter upon said Littlers to Walley. Again, the evidence does land at all times for the purpose of drilling not establish that Huffman either expressly and operating for gas, oil or water, with the or impliedly employed or in any manner auright and privilege of doing all and singular thorized or directed Catterson or the Matthat which is necessary for said purpose, etc. thews Drilling Company to construct the well This lease appears to have been duly recorded about which appellee was employed by said in the recorder's office of Grant county, Ind. company, or that Huffman had any knowlOn October 31, 1896, said Walley made the edge or notice that it was being constructed following assignment of said contract, or during the time appellee was employed therelease: "For value received I hereby sell, as- on. If the evidence were sufficient to show sign, and transfer to the Consumers' Gas that Huffman was the lessee of Littler, the Trust Company all of my right, title, and in- owner of the land, and that he had contracted terest in and to the within lease. (Signed] or directed the drilling or construction of the William A. Walley. [Seal.]” This assign- well, as alleged in the complaint, upon which ment was duly acknowledged before a notary appellee was employed to work, the lien that public on October 31, 1896, and was recorded might have been created in the latter's favor in the recorder's office of Grant county, Ind., so far as the lands in question could thereby and was introduced in evidence on the trial. be charged, would only extend to and affect The above was all of the evidence given in the leasehold interest which Huffman owned the cause.

or had therein under the lease from the It is certainly manifest that it is for sever- owner. Sections 7255 and 7256, Burns' Ann. al reasons insufficient to sustain the decision St. 1901; McCarty v. Burnet et al., 84 Ind. of the trial court. As previously shown, the 23, and cases there cited; Coburn v. Stephens complaint, after averring that Joseph W. Lit- et al., 137 Ind. 683, 36 N. 6. 132, 45 Am. St. tler on January 14, 1904, was, and still is the Rep. 218; Adams v. Buhler et al., 116 Ind. owner in fee simple of the real estate de- 100, 18 N. E. 269. See Phillips on Mechanics' scribed, then proceeds to allege that on said Liens, 88 65, 83, 84, 191, 112, 305, 306. In date the defendant, William H. Huffman, Adams v. Buhler, supra, this court, in consid"operating under an oil and gas lease from ering the mechanic's lien therein involved, said owner Joseph W. Littler, contracted said: “Mechanics' liens rest upon contract, with George N. Catterson and the Matthews express or implied, with the owner or other Drilling Company to drill a gas and oil well person whose interest in the real estate it is on the above-described lands"; that on said proposed to bind or affect by the lien, and 14th day of January George N. Catterson em- while persons who perform labor or furnish ployed the plaintiff (appellee herein) to work material for a contractor may secure a lien upin constructing the aforesaid well at and for on the real estate or building, by notifying the the price of $4.50 per day. The principal owner and taking the other necessary steps, theory of the complaint appears to be to en- it is, nevertheless, essential to the sufficiency force or foreclose a mechanic's lien against of a complaint to foreclose such a lien that the leasehold interests of Huffman, which it should appear therein who owned the real the latter acquired in the lands under the estate, or the interest to be affected, at the lease from the Littlers, but the evidence in time the building was erected, and that it the case wholly fails to prove that Huffman was erected in pursuance of a contract, exowned or had any interest whatever, by lease press or implied, with such owner. Lawton or otherwise, in the lands or other property v. Case, 73 Ind. 60; Neeley v. Searight, 113 upon which it was sought to enforce the lien Ind. 316, 15 N. E. 598; City of Crawfordsin controversy. The evidence shows that ville v. Brundage, 57 Ind. 262." It cannot Joseph W. and Sarah E. Littler executed be asserted that the complaint under the the gas and oil lease upon these lands to one facts therein alleged seeks to secure, in adWilliam A. Walley and that he subsequently

dition to a foreclosure of the lien, a personassigned and transferred all of his interest, al judgment against either of appellants right, and title in and to the lands to the herein. The evidence is so clearly insufficient Consumers' Gas Trust Company, which com- to establish the right of appellee to either pany, so far as the evidence discloses, is still a personal judgment or a decree foreclosing the owner and holder of said lease under this the lien in controversy as against appellants assignment. There is absolutely no evidence that nothing in reason can be said to the contending to show that Iuffman in any manner trary.

For the insufficiency of the evidence the conveyed and mortgaged to plaintiff, by virjudgment of the lower court, so far as it af- tue of the powers conferred therefor on fects appellants, or either of them, is in all said association by the deeds afores:uid, and things reversed, and the cause is remanded, by the law in force at the time of the with instructions to grant each of the appel- execution of said mortgage.” The relief lants a new trial, and for further proceedings sought by said complaint is the foreclosure not inconsistent with this opinion.

of the mortgage and a sale of the mortgaged premises, "free from all claims of the de

fendants or any of them,” for the purpose of (167 Ind. 42)

raising and paying the plaintiff's debt. ApCITY OF COVINGTON et al. v. FERGU- pellant unsuccessfully demurred to the comSON. (No. 20,878.)

plaint, and it afterwards filed answer in (Supreme Court of Indiana. June 21, 1906.) three paragraphs, the first of which was a 1. MORTGAGES -- FORECLOSURE-PARTIES-DE- general denial. It then filed a cross-comFENSES.

plaint in two paragraphs, and with this Under the Code a defendant joined in a

pleading there was filed what was denomiforeclosure proceeding by allegations that it claims some interest in the property is entitled

nated a fourth paragraph of answer by way under its general denial to prove any title it of cross-complaint, which, for the sake of may have.

convenience, we shall hereafter denominate 2. APPEAL AND ERROR HARMLESS ERROR

as a fourth paragraph of answer. The third RULING ON DEMURRER. Error, if any, in sustaining a demurrer to

paragraph of answer was directed to so much a portion of an answer is harmless where evi- of the complaint as sought a foreclosure dence of all the facts alleged in the answer is upon a particular 15-acre tract, and, in subadmissible under the general denial, also pleaded,

stance, the defense therein asserted was that pleaded.

said association deraigned its title from a [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4094.]

deed, which was specially pleaded, and under

which said city claimed that it was entitled Appeal from Circuit Court, Fountain

to said real estate by virtue of a provision County; Joseph M. Rabb, Judge.

therein which it is claimed amounted to Action by David S. Ferguson against the

limitation. The first and second paragraphs city of Covington and others. From judg

of cross-complaint were ordinary paragraphs ment for plaintiff, defendants appealed to the

to quiet title as to the whole real estate Appellate Court, from whence the cause

against which a foreclosure was sought, and was transferred to this court under Burns'

what we have denominated the fourth paraAnn. St. 1901, § 1337u. Affirmed.

graph of answer set up substantially the 0. S. Jones, A. T. Livengood, and O. R. same facts as are contained in the third paraLewis, for appellant. Lucas Nebeker and graph of answer. Appellee filed a general V. E. Livengood, for appellees.

denial to the cross-complaint, and demurred,

for want of facts, to the second and third GILLETT, J. This suit was instituted paragraphs of answer. The demurrer was by appellee against appellant and others to sustained, to which ruling said city reserved foreclose a real estate mortgage, executed a several exception. It then appears that the by the Fountain, Warren & Vermillion Agri- city withdrew its fourth paragraph of answer, cultural Association. The allegations of the and refused and declined to amend the first complaint as to appellant are as follows: and second paragraphs of answer, or to plead "Plaintiff further avers that the city of Cov- further to the plaintiff's complaint, but electington, defendant herein, a municipal cor- ed to stand by and upon its said answers. poration in and under the laws of Indiana, The cause was submitted, and, after hearing claims and pretends to have and own a con- the evidence, the court entered a finding tingent estate in fee simple, dependent upon

that all of the allegations of the complaint the condition that should said corporation for were true, and it further found against the any cause whatever cease to exist, or should city on its cross-complaint. Upon the findfail to take all proper care of said grounds, ings there was a decree of foreclosure, under pay all taxes thereon, and keep the same which it was ordered that all the right, title, properly and securely fenced, and strictly interest, and claim of the defendants and applied for the purposes for which said cor- each of them be sold for the purpose of raisporation was organized, for the period of ing and paying the amount due, and it was five years, then said real estate to revert further adjudged that the city take nothing to said town, now city, of Covington, for a by its cross-complaint. From this decree, public park, commons, or fair ground, but the city appeals. The first and second asplaintiff denies that said defendant has any signments of error, which draw in question contingent or other right, title, or interest the sufficiency of appellee's complaint, stand whatever in any of such land. Plaintiff as waived. The remaining assignment is avers that if said defendant has, or shall be based on the alleged error of the court in found or held to have any title, right, or sustaining appellee's demurrer to the third estate, the same is subject to the lien of said paragraph of appellants' answer. mortgage, and that said mortgage is para

It does not admit of doubt that under the mount thereto, and that the same was duly issues which were forined by the answer in

78 N.E.-16

general denial to appellee's complaint the hensive, and the provisions respecting judgquestion was presented for adjudication as ments and decrees are also very full and to whether appellant had any interest in the liberal, and we should do violence to its letter real estate against which a foreclosure was and spirit if we did not hold, to borrow the sought. Appellee sought, by his complaint, language of its framers, that the ultimate as he was entitled to do, to secure a decree of rights of the parties' may be determined in such a character that a sale thereunder would one action.” In Ulrich v. Drischell, 88 Ind. cut off the claim which it was charged that 354, 360, this court said: “While it is true the city was asserting; that pleading that a proceeding to foreclosure a mortgage amounted to a distinct challenge to the latter is not an action to quiet title, it is also true to come in and assert its claim of right, so that in very many essential respects it is that if appellee should be successful, a sale closely analogous. The parties are brought under the decree would pass a title divested into court in such a suit for the purpose of of the claim which the city was alleged to be adjusting all equities, rights and interests asserting. In Masters v. Templeton, 92 Ind. in the land, and the question of their rights 447, the question arose as to the right of to the land is one of the principal and controlMasters to assert a vendor's lien as against ling questions of the case. It is, in truth, the one Beckett, it appearing that the latter dominating and leading purpose of the suit claimed under a decree of foreclosure, in The subject of the controversy is a thing—the which it was alleged "that all of the defend mortgaged real estate and this the decree ants, other than the mortgagors, 'claimed to directly affects, for it settles the rights of hold some interest or lien in and upon said the parties to it, measures their equities, and real estate, but that they took and held the adjusts their interests." See, also, Woodsame subject to Beckett's mortgage lien.'" worth v. Zimmerman, 92 Ind. 349; Adair v. The court said: “The decree in Beckett's Mergentheim, 114 Ind. 303, 16 N. E. 603; favor concludes the appellant from assert-Gaylord v. City of Lafayette, 115 Ind. 423, 17 Ing any right or lien in the land superior to N. E. 899. his, because she was a party to that action, The proposition is too well settled to reand her rights were foreclosed by the decree quire the citation of authorities that where therein rendered. Our Code provides that evidence of the particular matters which are 'any person may be made a defendant who

set up in an answer to which a demurrer was has, or claims, an interest in the controversy sustained is admissible under the general adverse to the plaintiff, or who is a necessary denial, which was on file, the ruling, if erparty to a complete determination or settle roneous, is harmless. Appellant cannot aval) ment of the questions involved.' This is a itself of its own action subsequent to the very comprehensive provision, and was meant ruling on demurrer. The question is: Did to confer authority to settle in one suit all the sustaining of the demurrer constitute conflicting claims to property involved in the error at the time the ruling was made? We litigation. The rule is a wise and salutary may also call attention to the point made one, for it enables the court to fully adjust by appellee's counsel that appellant was not all equities, to determine and protect all circumscribed in the introduction of his evirights, and to put an end to litigation con dence by the ruling on the third paragraph cerning the subject-matter of the suit by one of answer, since the same affirmative matters decree. Multiplicity of actions is thus prevent were available to it under the issues tendered ed, full force and effect secured to judicial de by the first and second paragraphs of crosscrees and judicial sales made operative and complaint, citing Luntz v. Greve, 102 Ind. effective. It has long been the law of this 173, 26 N. E. 128, and State v. Hindman, 159 state, that conflicting claims of title may be Ind. 586, 65 N. E. 911. The cause went to settled, and questions of priority determined, trial on the issues as we have indicated in 'foreclosure suits, whenever the proper that they existed, and we can only hold that issues are tendered.

Prior to the

the error relied on, in the state of the isadoption of the Code system there was some

sues, is not available. reason for holding that the question of title

Judgment affirmed. could not be adjudicated in a foreclosure proceeding; for questions of title were triable only by courts of law, while the question of

(167 Ind. 509 a right to a foreclosure was cognizable only

SHIRK V. HUPP. (No. 20,725.) 1 by courts of chancery, and there was thus a (Supreme Court of Indiana. June 22, 1906.) conflict of jurisdiction whenever a legal title

1. MUNICIPAL CORPORATIONS STREET IMwas asserted. This cannot happen under the

PROVEMENTS—NONPAYMENT OF ASSESSMENTS Code, where both law and equity jurisdiction -REMEDY OF CONTRACTOR. are vested in one tribunal, where provision

Under Acts 1901, p. 537, c. 231, § 6, de

claring that assessments for a street improveis made for bringing into court all parties in

ment shall be a lien, authorizing an action to terested, either in the property or the contro

foreclose the lien on the nonpayment of the asversy, and where ample authority is conferred sessments, and providing for the issuance of to determine all rights, and adjust all equi

improvement bonds which may be delivered to ties in one suit. The provisions of our Code

the contractor in payment for the work, etc., a

contractor constructing a street improvement upon the subject of parties are very compre may sue on the bonds issued by the city in

1 Rehearing denied, 79 N. E. 490.

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