Dingledine v. Hershman

• Decision Date: 31 January 1870
• Citation: 53 Ill. 280,1870 WL 6192
• Parties: SEBASTIAN DINGLEDINEv.GEORGE HERSHMAN et al.
• Court: Illinois Supreme Court

53 Ill. 280

1870 WL 6192 (Ill.)

SEBASTIAN DINGLEDINE

v.GEORGE HERSHMAN et al.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Brown county; the Hon. CHAUNCEY L. HIGBEE, Judge, presiding.

Certain mechanics and material-men filed their petition to enforce a mechanics' lien, making prior incumbrancers by mortgage, parties defendant. A decree was rendered, ascertaining the value of the land, declaring the rule for the distribution of the proceeds of a sale of the property, and directing a sale to be made. The decree was fully executed, and the proceeds of the sale paid over to the prior incumbrancers, the mortgagees. Subsequently, this bill of review was filed by those claiming the mechanics' lien, whereby it is sought to modify the rule of distribution declared in the original decree, on the allegation that it is erroneous, and to compel the mortgagees to refund a portion of the money received by them, in order that it may be paid over under the mechanics' lien.

Whether the error in the original decree, if there be any, can properly be corrected in this mode, is the principal question.

Mr. JACKSON GRIMSHAW, for the appellant.

Bill of review must be on error apparent. Whitney v. Bank United States, 13 Peters, 6; Dexter v. Arnold, 5 Mass. 303; Griggs v. Gear, 3 Gilm. 10; Evans v. Clement, 14 Ill. 209; Story's Eq. Pl. Sec. 407; Ibid. 420; Turner v. Berry, 3 Gilm. 544; Garrett v. Moss, 22 Ill. 365; Getzler v. Saroni, 18 Ill. 517.

The attempt to review the original decree, seems to be based upon sec. 20, act 1845, Revised Code, 1845, p. 347.

The court having once ascertained the value of the land, and fixed the distributive share of the appellant by its decree, could not, when the decree had spent its force, modify its own order. Mr. W. L. VANDEVENTER, for the appellees.

The relief sought by the bill of review, may be properly granted.

There are two grounds for a bill of review:

First--For error of law, apparent on the face of the decree; and, secondly, newly discovered evidence. 2 Dan. Ch. Pr. 3d ed. 1630; Griggs v. Gear, 3 Gilm. 2; Garnett et al. v. Moss et al. 22 Ill. 363; Quarrier v. Carter, 4 Hen. & Munf. 242.

And these two causes may be joined in the same bill. 2 Dan. Ch. Pr. 1630, note 4.

It may be brought for error of law, whenever the decree is contrary to the statute law. Ib. 1632, note 1.

A bill of review may be brought for error apparent on the face of the decree, without leave of court; it is filed as of right. Griggs v. Gear, 3 Gilm. 2; Getzler v. Saroni, 18 Ill. 511; 2 Dan. Ch. Pr. 1633; Story's Eq. Pl. sec. 424.

Besides, a defendant, after demurring to a bill of review, as was done in this case, is precluded from denying or questioning the plaintiff's right to file it. Griggs v. Gear, 3 Gilm. 2; 2 Dan. Ch. Pr. 1637, note 1; Quarrier v. Carter, 4 Hen. & Munf. 242. See, also, Horner v. Zimmerman et al. 45 Ill. 14.

Mr. O. C. SKINNER, for the purchasers.

I contend that the purchasers, under a decree, there being jurisdiction, are protected, though the decree be afterward reversed; that where the plaintiff is not the purchaser, or does not still hold the property, a reversal will not affect the title; that it is only when the complainant is purchaser, and still owns the property, that reversal affects title; that third parties purchasing at judicial sales, and purchasers from parties to the suit, are always protected, though the judgment or decree be afterwards reversed, for irregularity not going to jurisdiction of the court. 45 Ill. 20, 23; 13 Ill. 494, 495; 28 Ill. 272, ( Durham v. Heaton) ;Lavender v. Latimer, 15 Ill. 80; Fergus v. Woodworth, 45 Ill. 374; 39 Ill. 128; Moore v. Neil, 39 Ill. 656; Morgan v. Ladd, 2 Gilm. 414; Thomas v. Negus, 2 Gilm. 700.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

Appellees were petitioners in the circuit court of Brown county, at the September term, 1867, for liens as mechanics and material-men, on a lot of land in the possession of Charles D. Wilber, who had contracted with the petitioners to erect a hotel building thereon. The work was done and materials furnished, for the most part, by the petitioners. The ground on which it stood was purchased by Wilber of one Jacob C. Bloom, who was the owner thereof as far back as the fifteenth of June, 1866, on which day he executed four notes to one Sebastian Dingledine, of one thousand dollars each, payable in one, two, three and four years from date, with interest at six per cent, and on the same day he executed, his wife joining therein, a deed of mortgage on this land to secure the payment of the notes, which was duly acknowledged and recorded. Dingledine was made a defendant to the petitions, who, in his answer, set up this lien as a prior lien.

One Ira Van Olinda, also made a defendant, claimed and set up a lien prior in time to the petitioners, arising out of a trust deed executed by Wilber to one Leavitt, on the twenty-fifth of August, 1866, to secure the payment of three promissory notes of sixteen hundred and eighty-two dollars each, payable in one, two and three years, at eight per cent interest, which deed was in trust for the use of J. C. Bloom, his interest in which, he, for a valuable consideration, had sold and assigned to Van Olinda, and put him in possession of the premises. This deed was recorded on the third of September, 1866.

No one of the petitioners claimed any lien of a date anterior to May, 1867.

The number of petitioners for liens as mechanics and material-men amounting to about fifteen, the court ordered that the suits should be consolidated, for the purpose of a full and final decree. At the March term, 1868, a jury being waived by the parties, the cause was heard upon the original and amended petitions, interpleaders, the answers of Dingledine and Van Olinda and others, and replications thereto, and a decree rendered that Wilber pay, within four months, all costs and the several amounts found by the court to be due the lien creditors, and in default of payment, that the premises be sold to satisfy them. It was further found by the decree, that the premises, before the improvements were made by the petitioners, were of the value of twelve thousand dollars, and that to the extent of that value Van Olinda and Dingledine were prior incumbrancers, and that by reason of the improvements, the premises were then of the value of thirty thousand dollars, and it was ordered that the master, from the proceeds of the sale, pay, first, the fees, costs and expenses of the cause, and costs of all the causes and suits, “and it appearing to the court that the amount due Van Olinda and Dingledine upon the decree will not exceed, before the next term of court, twelve thousand dollars, the value of the premises immediately prior to the first of said mechanics' liens, it is ordered that the master pay Van Olinda and Dingledine the full amount due them; but if the premises fail to produce money enough to pay them in full, then they should be paid pro rata.”

The master reported to the court, at the September term, 1868, that he had sold the premises, on default of Wilber, to Van Olinda and one Loring P. Wheeler, for eight thousand two hundred and fifty dollars, which they paid, and the master executed a deed; that he paid all costs, etc. and then paid to Sebastian Dingledine, the oldest incumbrancer, four thousand four hundred and six dollars eighty-four cents, being his claim in full as found by the decree, and the residue, amounting to three thousand four hundred and ninety-two dollars eighty-one cents he paid to Van Olinda, and that nothing remained with which to pay mechanics' liens.

In August, 1868, a bill of review was filed to the September term by the petitioners, in which Van Olinda, Dingledine, Bloom and Leavitt, and one Smith, were made defendants, and process served upon them, complaining of error in the original decree, in respect that Dingledine and Van Olinda are to be paid in full or pro rata first, and before complainants; that the decree should have been so framed as to direct...