Judson v. Stephens
| Citation | 75 Ill. 255,1874 WL 9233 |
| Parties | EDWIN JUDSONv.JOHN M. STEPHENS et al. |
| Decision Date | 30 September 1874 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding. Messrs. ELDRIDGE & TOURTELLOTTE, for the appellant.
Mr. JOSIAH H. BISSELL, for the appellees.
This was a bill in chancery, in the Cook circuit court, brought by Edwin Judson against John M. Stephens, Richard Duval and Wm. Duval, to review a decree obtained by them against complainant and others in a proceeding to enforce a mechanic's lien.
The appellees filed a motion in writing to strike the bill from the files, and based the motion on the following reasons:
First. That the said bill is improperly filed, the remedy of the complainant herein being by appeal or writ of error, and not by bill of review.
Second. That it appears, on the face thereof, that the complainant herein has had an opportunity to assert his rights and make his defense in the case to review which this bill is brought, and has neglected there to assert the same.
Third. That it does not appear that the said complainant herein has performed the decree to review which this bill is filed.
The court allowed the motion, and the bill was stricken from the files at the costs of complainant.
To reverse this judgment appellant has prosecuted an appeal to this court.
We understand the rule to be, that a bill of review may be brought upon two grounds: first, upon error in law appearing upon the face of the decree, without further examination of matters of fact; or, second, upon new matter which has been discovered after the decree, and could not possibly have been used when the decree was made. Daniell's Ch. Pr. 1576; Story's Eq. Pl. 404; Griggs v. Gear, 3 Gilm. 3.
This bill was filed upon error alleged to be apparent on the face of the decree. It is averred that, on the 11th day of September, 1872, appellees filed a bill in the circuit court of Cook county against Frederick A. Werchelman, appellant and others, in which it was alleged appellees entered into a contract with Werchelman to erect a building upon certain premises, upon which he had a leasehold interest; which premises he held under a lease from Leopold, Koch & Co., dated March, 1872, and running five years.
That under the contract appellees performed the work agreed upon, and at the time of the commencement of the suit there was due them $1,086, with interest; the bill prays that appellees may have a valid and prior lien upon the premises and the interest of Werchelman and his assigns, and that the premises may be sold to pay the amount of their debt.
It is further alleged in the bill that a default was taken as to all the defendants in the suit to enforce the lien, and that in November, 1873, a decree was rendered, which, after finding that the work was done under a contract with Werchelman, it was by the decree ordered that appellees have a valid and first lien upon the premises, and that they be sold, and all and singular the right, title and interest of Werchelman, appellant and others, who were defendants therein, be sold at public auction.
In McCarty v. Carter, 49 Ill. 53, it was held that a tenant for life or years could not by contract create a lien upon the fee; that he might by contract create a lien to the extent of his right and interest in the premises, but no further.
It was expressly stated in the petition filed by appellees, as is averred in the bill, that Werchelman held the premises as a subtenant under a lease, and there is no averment that the work was done with the knowledge or by the consent of appellant, the owner of the fee.
Under such circumstances it is apparent that Werchelman could make no contract with appellees which would give them a lien upon the fee of the premises for work performed or materials furnished thereon. The court in which the decree was entered had an undoubted right to order whatever interest Werchelman had in the premises to be sold, but the court had no power whatever to decree that the fee of the premises should be sold to discharge the lien of appellees.
It is, however, urged by appellees that, appellant having been served with process, it was his duty to have appeared and set up his interest by way of answer in the suit to enforce the lien; and as he failed to do this he cannot now be heard to complain.
An appearance by appellant as owner of the fee, and answer, could not have placed his interest and rights in any better condition to be...
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