Kidder v. Aholtz
| Decision Date | 31 January 1865 |
| Citation | 1865 WL 2772,36 Ill. 478 |
| Parties | SIDNEY KIDDER and OSCAR B. KIDDERv.FREDERICK AHOLTZ. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
ERROR to Circuit Court of Macon County.
The case is sufficiently stated in the opinion.
Nelson & Roby, for plaintiffs in error.
S. G. Malone, for defendant in error.
This was a petition for a mechanic's lien, filed by the defendant in error against the plaintiffs in error and others. It sets forth that the trustees of the Illinois Central Railroad sold (without conveying) a certain tract of land to one Galloway; that Galloway sold to one Rea; that Rea sold to one McKinney; and that defendant in error, under a contract with McKinney, built a house upon the land.
McKinney does not answer. Rea answers, setting up that he bought the land of Galloway, and sold to McKinney, but that McKinney forfeited his contract to him, and he forfeited his own to Galloway, whereby the land reverted to the latter.
The Kidders answer, setting up a purchase from Galloway, and admitting nothing as to the building of the house by Aholtz for McKinney. The trustees of the railroad answer, claiming the legal title.
Galloway answers, setting up the purchase of the land by himself from the trustees; the sale to Rea; the forfeiture of his contract by the latter; the resale of the land by himself to the Kidders, and the assignment of their notes to the trustees.
All the answers are unsworn, and disclaim all knowledge of the contract for the building of the house.
Aholtz filed a supplemental petition, alleging that when the Kidders bought of Galloway, they had notice of the petitioner's lien, and retained in their own hands $1,700, as indemnity against it, and that they still retain it. The Kidders answered, denying these allegations.
These are the pleadings, so far as they are material. A jury was waived, and the court heard the case and decreed that the petitioner have a lien on the premises as against the interest of defendants, McKinney and the Kidders, and that, in default of payment, their interest be sold, with privilege of redemption. The interests of the other defendants are not affected by the decree. The decree recites that “it appears, from the evidence, that the defendants, Sidney Kidder and Oscar B. Kidder, purchased the real estate described in the petition, and reserved and kept of the purchase money from them due to William Rea, one of the defendants herein, in their hands, for the purpose of paying off the petitioner's lien for materials and labor in erecting the house and building, in the petition mentioned and described, a sum exceeding in amount the sum due to petitioner.”
It is assigned for error by the plaintiffs in error, S. and O. B. Kidder, who are the only parties complaining of the decree, that the finding of the decree that the Kidders “reserved of the purchase money from them due to William Rea,” is an essential variance from the allegation of the amended petition, that the reservation was made from purchase money due Galloway. It is quite evident that the introduction in the decree of the name of the defendant Rea, instead of that of Galloway, is a mere clerical error. All the pleadings show that the Kidders purchased of Galloway. There is no controversy on that point. The meaning of the decree, when read in connection with the supplemental petition and answers, is unmistabable.
It is also urged that the proof should be preserved in the record, in order to support the decree, and that it nowhere appears, by recital in the decree or otherwise, that the house was erected under the contract set out in the petition. But a contrary rule has been held in Kelly v. Chapman, 13 Ill., 530, as applicable to proceedings under the mechanic's lien law. It is there held that the party complaining of the verdict must preserve the evidence. While the court has always held this proceeding to be in the main of a chancery...
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Bonnell v. David B. Lewis.
...the evidence in the record as a necessary support of the decree. Kelly v. Chapman, 13 Ill. 530; Ross v. Derr, 18 Ill. 245; Kidder v. Aholtz, 36 Ill. 478: Lewis v. Rose, 82 Ill. 574. So, also, if an issue out of chancery is submitted to a jury, and the decree of the court is based upon the v......
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Langford v. Mackay
...title of mortgagor after mechanic's lien has attached, the merger will not defeat the lien: Dobschuetz v. Holliday, 82 Ill. 371; Kidder v. Aholtz, 36 Ill. 478; Gaskill v. Tramer, 3 Cal. 334; Cheney v. Bonnell, 58 Ill. 68. Where the materials were furnished equitable owner and the legal owne......
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Lewis v. Rose
...as has often been held by this court in cases of this character. Kelly v. Chapman, 13 Ill. 530; Ross v. Derr, 18 Ill. 245; Kidder v. Aholtz, 36 Ill. 478. In proceedings under the Lien Law, it devolves upon the party complaining of the judgment or decree in the court below to preserve the ev......
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Jennings v. Hinkle
...practice has never obtained, in this class of cases, of preserving the evidence in the record as necessary to support the decree. Kidder v. Aholtz, 36 Ill. 478; Croskey v. The Northwestern Manufacturing Co. 48 Ill. 481. The court has found the building had been erected, and all other materi......