Hacken v. Isenberg

• Decision Date: 08 October 1919
• Docket Number: No. 12192.,12192.
• Citation: Hacken v. Isenberg, 288 Ill. 589, 124 N.E. 306 (Ill. 1919)
• Parties: HACKEN v. ISENBERG et al.
• Court: Illinois Supreme Court

288 Ill. 589

124 N.E. 306

HACKEN

v.ISENBERG et al.

No. 12192.

Supreme Court of Illinois.

June 18, 1919.

Rehearing Denied Oct. 8, 1919.

Appeal from Second Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Bill, under Mechanic's Lien Law, § 30, by J. Hacken against Harris Isenberg and others.Decree for defendants was affirmed by the Appellate Court(210 Ill. App. 120), and Christina Rollberg, who had been brought into the proceeding, appeals.Reversed and remanded.Maclay Hoyne, State's Atty., Culver, Andrews, King & Stitt, John W. Beckwith, and Charles T. Farson, all of Chicago, for appellant.

Hyman Soboroff, of Chicago, for appellees.

DUNCAN, J.

On July 10, 1912, Joseph Hacken entered into a lease in writing with Henry A. Rollberg for a two-story frame building known as No. 1141 South Halsted street, Chicago, for a period of 10 years from the 1st day of September, 1912.The property was owned at that time by Henry A. Bollberg and Christina Rollberg, his wife, as joint tenants.Hacken entered into a contract in writing August 14, 1912, with Harris Isenberg, Benjamin Isenberg, and Morris Kaplan, contractors of the city of Chicago, for the remodeling of said building according to certain plans, specifications, and drawings made by R. D. Brown, architect and superintendent, the alterations to cost $4,025.The contractors let portions of the work to different subcontractors, who furnished work and material for the premises.Hacken paid to the original contractors on the work of remodeling $1,600.A number of subcontractors and materialmen served notices of liens on the Rollbergs and were threatening suit.On January 3, 1913, Hacken filed in the circuit court of Cook county, under section 30 of the Mechanic's Lien Law(Hurd'sRev. St. 1917, c. 82, § 42), a bill for a general settlement and to bring all of the lienors into court to have their claims adjusted in one suit and to enjoin and restrain them from prosecuting separate suits.The Rollbergs were not made parties to this bill.A number of subcontractors and the original contractors were made partiesdefendant to the bill.On March 22, 1913, leave was given to the subcontractors, some of whom were not made defendants to the original bill, to file answers in the nature of intervening petitions.The Rollbergs were made partiesdefendant to these intervening petitions.Thereafter the original contractors filed an answer in the nature of an intervening petition, and in May, 1914, a cross-bill, and joined the Rollbergs as partiesdefendant.No summons was issued to the Rollbergs except on the intervening petition of J. A. Thomas, a subcontractor whose claim was afterwards disallowed by the court.The Rollbergs filed their appearance March 5, 1914, and on April 2, 1914, they filed their joint plea to all petitions and claims, setting up as a defense that no notice or claim for lien was filed with the recorder by any of the parties claiming liens, as required by the provisions of the Torrens Act(Hurd'sRev. St. 1917, c. 30, §§ 44-154, 50, 61, 61a); that their property was registered under the Torrens Act, and by reason thereof no such liens could be maintained by the subcontractors.A reference to a master in chancery was taken on the issues formed, under a stipulation that the Rollbergs should have accorded to them all their rights and defenses to the same extent as if they had been pleaded by proper answers filed.After the testimony was taken Henry A. Rollberg died.His death was suggested on the record, and the suit proceeded against Christina Rollberg in her own right and as successor to the title of her deceased husband.She then filed answers to all intervening petitions, including the cross-bill of the contractors, setting up all her defenses.The court held and decreed that the contractors were entitled to a lien on the premises, including her interest therein, for $2,425 and $500 interest, and that the subcontractors, M. Schulrey, H. Kapper, the I. Lurya Lumber Company, and Sam Kaplin, were also entitled to liens in equal degree, aggregating $1,266.71, and, further, that the claim of the original contractors should be decreased to the extent of any and all payments that might be made on the amounts decreed to the subcontractors, and that said premises be sold to pay said liens and costs unless paid by Hacken or Mrs. Rollberg.On appeal to the Appellate Court for the First District the decree was affirmed (210 Ill. App. 120).She has prosecuted this appeal on a certificate of importance by the Appellate Court.

The first contention of the appellant is that the judgment of the Appellate Court and the circuit court's decree should be reversed for the season that Hacken, as lessee, had no right to maintain such a proceeding under section 30 of the Mechanic's Lien Law, as that statute confers such right only upon the owner of the property or some one claiming a lien thereon.By the provisions of section 1 of the Mechanic's Lien Act(Hurd'sRev. St. 1917, c. 82, § 15) the contractor's lien extends to an estate in fee, for life, for years, or any other estate, or any right of redemption or other interest which such owner may have in the lot or tract of land on which the improvement is made.By section 21(section 35) of the act the subcontractor's lien extends to the same character of an estate, right, or interest.An owner, within the meaning of said section 1, is one who has had improved any tract or lot of land in which he has such an estate, right, or interest defined and set forth in section 1.Paulsen v. Manske, 126 Ill. 72, 18 N. E. 275,9 Am. St. Rep. 532;Sorg v. Crandall, 233 Ill. 79, 84 N. E. 181.The words ‘the owner’ in section 30 have the same meaning as they do in section 1, and have reference to any one having such an estate, right, or interest as aforesaid, whether his estate, right, or interest be one in fee, for life, for years, or for any other interest.That section expressly gives the owner, or any person having such a lien, the right to file a bill or petition in the proper court for a settlement when there are several subcontractors' liens, or claims for such liens, against the premises, if he shall fear that there is not a sufficient amount due the contractor to pay all such liens.The contractor and all persons having liens upon the premises, and all persons who are interested in the premises, shall be made parties to such a bill.That section further provides that the amounts due all lienors shall be ascertained, and the rights of all parties declared, and that the premises may be sold as in other cases under the act, and that all claims shall be prosecuted under like requirements as are directed in section 11 of the act.

Hacken was an owner of an estate for years, and had the right to file his bill under section 30, and he was required to make parties to his bill all persons of every character claiming liens against the premises, and all persons interested in the premises, including other owners, if any, whose interests might be subject to such liens or affected thereby.Any of the parties claiming liens and made parties to his bill had a right to file intervening petitions or answers in the nature thereof, or a cross-bill, if they chose to do so, and make the Rollbergs parties defendantthereto, and have the question determined as to whether or not the interests of the Rollbergs are subject to their liens, and the court properly so ruled.The burden was upon the lienors to prove every fact required by the statute to establish their right to a lien on the premises, either against the interest of Hacken, the lessee, or against the interest of the appellant as owner of the fee.Kankakee Coal Co. v. Crane Bros. Manf. Co., 128 Ill. 627, 21 N. E. 500.

The claim of appellant that the court had no jurisdiction of her person because none of the lienors had express permission to make her a partydefendant to their petition or to the cross-bill is not tenable.The court expressly gave all of the parties leave to file their petitions and cross-bills, and she was made a partydefendant thereto and filed both pleas and answers to said petition and cross-bill.She thereby submitted to the jurisdiction of the court, and she would be bound by whatever decree the court properly entered against her.If assent of the court was necessary to make her a partydefendant, as aforesaid, the court gave its assent by trying the issues and entering its decree.There is no ground, therefore, for the further claim that the liens are barred by the Statute of Limitations.The filing of a petition is the institution of the suit, and when a new party is made by amendment the suit is brought, as to him or her, from the date of the amendment.Bennitt v. Wilmington Star Mining Co., 119 Ill. 9, 7 N. E. 498.The fact that appellant did not answer the petition or the cross-bill until after the limitation had expired is of no significance in this case.

The Mechanic's Lien Act only gives to contractors and subcontractors a lien against an owner or his interest in the land or lot improved when such improvement is made by a contract or contracts, expressed or implied, or partly expressed or implied, with such owner, or with one whom such owner has authorized or knowingly permitted to contract with the contractor for the improvement.The defense or claim of appellant that she did not make any such contract with the contractor, and did not authorize or knowingly permit Hacken to contract with the contractors for the improvement in question, must be sustained.The evidence mainly relied upon by appellees for their claim that the Rollbergs authorized or knowingly permitted the contract for the improvement are two separate printed clauses in the lease to Hacken, found in the second and fourth paragraphs of the lease, respectively.The provision in the second clause reads: ‘That the said party of the second...