George Green Lumber Co. v. Nutriment Co.

• Decision Date: 22 December 1906
• Parties: GEORGE GREEN LUMBER CO. v. NUTRIMENT CO. et al.
• Court: Illinois Supreme Court

224 Ill. 234

79 N.E. 621

GEORGE GREEN LUMBER CO.

v.NUTRIMENT CO. et al.

Supreme Court of Illinois.

Dec. 22, 1906.

Appeal from Appellate Court, First District.

Action by the George Green Lumber Company against the Nutriment Company and others. From a judgment of the Appellate Court affirming a decree dismissing the bill, complainant appeals. Affirmed.

Levi Sprague, for appellant.

George W. Hall, for appellees.

CARTER, J.

This is an appeal from a decree entered in the circuit court of Cook county March 23, 1905, dismissing for want of equity a bill filed to enforce a mechanic's lien as subcontractor, under the act of 1895, for an alleged balance of $1,195.

On the first trial judgment was entered in favor of appellant, and this judgment was affirmed by the Appellate Court. 94 Ill. App. 342. Appeal was thereupon taken to this court and judgment reversed on the ground that a master in chancery had no authority to require a litigant to pay the charges of a stenographer for taking and transcribing the testimony in addition to the fees allowed the master by the statute for performing the same duty and to make such payment a condition upon which he will consider the testimony. We there said: ‘As the judgment and decree must be reversed for the error mentioned and a further consideration had by the trial court, it is unnecessary to consider the other errors assigned.’ Nutriment Co. v. Green Lumber Co., 195 Ill. 324, 63 N. E. 152. The case was redocketed in the circuit court, and upon hearing a decree was entered dismissing the bill for want of equity. This decree, upon the second appeal to the Appellate Court, was reversed and the cause remanded to the circuit court because the trial court had refused to hear exceptions to the master's report which had no been previously filed before the master as objections to said report, and at the same time had refused to refer the case back to the master to take additional proof which might cure such additional exceptions. The Appellate Court stated in its opinion that it found no reason in the additional evidence now in the record to reconsider the views it had formerly expressed upon other questions determined in the former hearing. Green Lumber Co. v. Nutriment Co., 113 Ill. App. 635. The remanding order, under this judgment of reversal, was filed in the circuit court on May 16, 1904, and on November 18, 1904, the following order was entered in that court: ‘On motion of the complainant it is hereby ordered that the above-entitled cause be referred back to master in chancery William F. Wiemers for reconsideration upon all the evidence heretofore offered, and such additional evidence as may be offered upon the one subject as to the time within which the contract and agreement between the complainant and the Parks-Baldwin Building Company provided the said materials were to be delivered and paid for, said additional evidence to be limited to this one question, with leave to said defendant to file additional objections before the master.’ No objection of any kind appears to have been made by counsel to the entering of this order. Certain evidence was taken pursuant thereto, and on January 11, 1905, an order was entered stating that Master in Chancery Wiemers had been succeeded by James J. Gray, and that said Gray was ‘to examine all the evidence heretofore taken in said cause and report the same to this court, together with his conclusions of law and facts thereon, with all convenient speed.’ The master recommended that a decree be entered for complainant (appellant herein), to which appellee filed objections, adopting 34 objections theretofore filed and also 21 additional objections, all of which were overruled by the master. It was ordered that the objections filed should stand as exceptions to the report. The circuit court sustained the exceptions and dismissed the bill for want of equity. The case was thereupon appealed to the Appellate Court and a transcript filed there certifying that it was a true transcript from the date of the remanding order,...