Cairo & St. Louis R.R. Co. v. Cauble
| Decision Date | 31 July 1879 |
| Citation | 4 Bradw. 133,4 Ill.App. 133 |
| Court | United States Appellate Court of Illinois |
| Parties | CAIRO & ST. LOUIS RAILROAD COMPANYv.WILLIS CAUBLE. |
ERROR to the Circuit Court of Jackson county; the Hon. M. C. CRAWFORD, Judge, presiding. Opinion filed August 1, 1879.
Messrs. JUDD & WHITEHOUSE, for plaintiff in error; that the statute relating to liens for materials must be strictly construed, cited Rothgerber v. Dupuy, 64 Ill. 452; Huntington v. Barton, 64 Ill. 502; Canisius v. Merrill, 65 Ill. 67; Dunphy v. Riddle, 86 Ill. 22; Crowl v. Nagle, 86 Ill. 437.
The lien continues for three months only: Huntington v. Barton, 64 Ill. 502.
The commencement of the action in assumpsit does not save the limitation of the statute; liens are only enforcible in equity: C. & V. R. R. Co. v. Fackney, 78 Ill. 116.
An execution could not issue upon the decree: Baptist Church v. Andrews, 87 Ill. 173.
Notice must be in compliance with the statute: Phillips on Mechanics' Lien, § 320; Shell v. Leland, 45 Mo. 289.
The evidence should be preserved in the record: White v. Morrison, 11 Ill. 361; Ward v. Owens, 12 Ill. 285; Mason v. Bair, 33 Ill. 196; Wright v. Lagley, 36 Ill. 381; Cooley v. Scarlett, 38 Ill. 316; Eaton v. Landers, 43 Ill. 435.
Mr. J. B. MAYHAM, for defendant in error; that this court will presume the findings of the court below were upon sufficient evidence, until the contrary appears, cited Campbell v. Head, 13 Ill. 122; Butler v. Mehrling, 15 Ill. 488; Hopkins v. Ladd, 35 Ill. 178; Lawson v. Lauyhaus, 85 Ill. 138; Nimnov v. Kuykendall, 85 Ill. 476; Gardner v. Russell, 78 Ill. 292; Choate v. Hathaway, 73 Ill. 518.
Statutes of Limitations must be specially pleaded: Greenup v. Van Winkle, 2 Gilm. 684; Burnap v. Wight, 14 Ill. 303; Borders v. Murphy, 78 Ill. 81.
This was a proceeding prosecuted by the defendant in error, Willis Cauble, to establish and enforce a lien, under the act of April 3, 1872, upon the property of the Cairo and St. Louis Railroad Company. R. S. 1874, Ch. 82, § 52, et seq.; C. & V. R. R. Co. v. Fackney, 78 Ill. 116. The case stated and made by the petition was to the effect that in June, 1873, said railroad company was engaged in building its railroad, and had contracted with Henry R. Payson and Ferdinand E. Canda, firm of A. R. Payson & Co., to construct and build the road; that petitioner was a sub-contractor under said H. R. Payson & Co., the original contractors, and that he, under a contract made with them, furnished to said H. R. Payson & Co. certain timber, and materials and performed labor for them, all of which were employed and used in the building and constructing of said railroad, and that thereby said H. R. Payson & Co., as original or chief contractors, became and were indebted to him, petitioner.
The cause was heard and disposed of only as between the petitioner and the railroad company; and no action whatever was taken as against H. R. Payson & Co. The evidence is not preserved in the record, further than as it appears in the findings of the court. In order to sustain this proceeding as against the railroad company, and enforce a lien as against its property, it must appear that all the steps required by the statute have been taken. The eighth section of the act of 1872 provides that “The lien hereby created shall continue for three months from the time of the performance of the sub-contract, or doing of the work or furnishing the material.” The act of April 5, 1869, which gave a lien to sub-contractors on any house or other building, also provided, in the ninth section of the act, that “the lien hereby created shall continue for three months from the time of the performance of the sub-contract, or doing of the work or furnishing materials.”
It will be perceived the phraseology of the limitation here was identical with the phraseology of the limitation in the act now under consideration. In the case of Huntington v. Barton, 64 Ill. 502, which was based on said act of 1869, it was held by the Supreme Court the petition was filed too late, as section nine of the statute made the lien in such case continue only for three months after the doing of the work or furnishing of materials, except when the suit was brought within such time. The same effect must be given to section eight of the act of 1872.
The finding of the court in the decree herein was: “That this suit for the recovery of said sum due upon said contract for labor and material, was commenced within six months from and after said contract for labor and materials was completed, and material furnished by the petitioner and complainant to and for the defendant, the Cairo and St. Louis Railroad Company.”
This finding of facts did not authorize the decree declaring a lien upon all the property, real, personal and mixed, of the railroad company. In order to have justified a judgment or decree for a lien, the court must first have found, from the evidence, that the suit was commenced within three months from the time of the performance of the sub-contract. The findings of the court do not show at what date the sub-contract was performed, the materials furnished or work done. The suit may have been instituted within six months from that date, non constat, it was instituted within three months from that date. The statute is in derogation of the common law, and creates privileges and benefits not conferred on other creditors, and must be strictly construed. The person seeking the benefit of the statute must bring himself clearly within its provisions; one of these provisions is that the sub-contractor has a lien for only three months from the date of the performance of his contract, and the lien would only...
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