Carney v. Tully

• Decision Date: 30 September 1874
• Citation: Carney v. Tully, 74 Ill. 375, 1874 WL 9144 (Ill. 1874)
• Parties: GEORGE W. CARNEY.v.THOMAS TULLY et al.
• Court: Illinois Supreme Court

74 Ill. 375

1874 WL 9144 (Ill.)

GEORGE W. CARNEY.

v.THOMAS TULLY et al.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon HENRY BOOTH, Judge, presiding.

Messrs. SPRINGER & CORWIN, for the appellant.

Messrs. RUNYON, AVERY & COMSTOCK, for the appellees.

Mr. JUSTICE BREESEdelivered the opinion of the Court:

This is an appeal from a decree rendered by the circuit court of Cook county, in an action under the mechanics' lien law of 1869, to recover from Carney, the owner of the lot, for materials furnished.The contractors, O'Connor & Co., undertook to erect the building, he having made default in the payment for the same.

Both O'Connor and appellant were served with process, and on trial by the court and jury, a decree was rendered against both the defendants--O'Connor in the sum of seven hundred and nineteen dollars and seventy-seven cents, and against Carney in the sum of six hundred and fifty dollars and fifteen cents.

To reverse this decree against himself, Carney appeals.

The only question to which we have directed our attention is, have appellees, the plaintiffs in the action, brought themselves within the provisions of the statute?The act is amendatory of the mechanics' lien law, and was designed to protect sub-contractors, in which relation appellees stood to appellant.

The second section of the act provides, the party claiming to have performed labor, or to have furnished materials to the original contractor, shall cause a notice to be served upon the owner or lessee, or his agent, of the fact of his having performed labor, or furnished materials, and that he shall hold the house or building and the owner's interest in the ground liable therefor.If, then, a contract was in writing between the original contractor and sub-contractor, a copy of it, if obtainable, is to be served with the notice, and attached thereto, and the same must be served within twenty days from the completion of the sub-contract, or within twenty days after payment should have been made to the person performing the labor or furnishing the material.

Section 3 provides for service on an absent owner.Sess. Laws 1869, pp. 255, 256.

Appellant was a resident of the place where the building was erected.

From the terms employed in the second section the conclusion is irresistible, as the notice must be in writing, and the form given, that there must be personal service.The statute itself is in derogation of the common law, and those claiming its benefits must bring themselves within its provisions.Service of a written notice always means actual, personal service.The notice, if any was served on appellant, was served on the 7th of November, 1872, and by Thomas Tully, one of the appellees.He states it was at appellant's house on Butterfield street, and there were present in the room, besides appellant, two other gentlemen, one of whom looked like appellant's brother.

Appellant denies in the most positive terms that any notice was personally served upon him by either of the appellees, Thomas Tully, nor by any one representing him, nor by his brother....