Freibroth v. Mann
| Decision Date | 30 September 1873 |
| Parties | GEORGE FREIBROTHv.JOSEPH MANN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
This was a petition for a mechanic's lien, filed by Joseph Mann against George Freibroth.
Mr. THOMAS SHIRLEY, for the appellant.
Mr. HENRY D. P. HOSIER, for the appellee.
This was a mechanic's lien proceeding, commenced by petition. The defendant was served with process on the 18th day of February, 1873.
The cause was set for trial on the docket of the court below for the 6th day of June, 1873, and on the 19th day of that month, the defendant having failed to answer, the petition was taken for confessed against him. On the 20th of June, the court heard testimony, and found the amount of defendant's indebtedness to be $316.81, and entered a decree for that amount, with an order for the sale of the premises for its satisfaction. The defendant appealed.
Appellant assigns for error, that the court did not fix a time in the decree within which defendant was required to pay the money, citing Link v. Architectural Iron Works, 24 Ill. 551, and Rowley v. James, 31 Ill. 298. The ground of those decisions was, that there being then no redemption from the sale of premises under a mechanic's lien decree, a reasonable time should be given by the decree for the payment of the money. But the statute now gives the defendant the right of redemption in such case, for a specified length of time, (Laws 1872, p. 507,) and therefore, those decisions can no longer have any application to decrees in mechanic's lien proceedings, in the respect above named.
On the 28th of June, 1873, the court made an order that, upon the condition that the defendant pay into court the amount of the decree rendered against him. to abide the event of the suit, within five days from that date, or before the cause was reached, and all costs of suit accrued, he be let in to plead.
On the 7th day of July, 1873, the first day of the July term, the defendant moved for leave to file his answer, and it appearing to the court that the order of June 28th had not been complied with, the motion was denied, and the order of June 28th was set aside.
It is assigned for error, that the court erred in setting aside the default upon the terms imposed, and in the refusal of leave to file an answer. It is enough to say, that no sufficient cause was shown for setting aside the default, or filing the answer. The lien act requires the defendant to file his answer on or before the day on which the cause shall be set for trial on the docket. The provision of the chancery act in relation to filing an answer at the succeeding term, where, upon default, a bill has been taken for confessed, if it be held to apply to this...
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