Linnemeyer v. Miller
| Citation | 70 Ill. 244,1873 WL 8586 |
| Parties | HENRY LINNEMEYERv.JOHN MILLER et al. |
| Decision Date | 30 September 1873 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. WILLIAM A. PORTER, Judge, presiding.
This was a petition filed by Henry Linnemeyer against John Miller, Charles W. Rigdon and George F. Whitney, to enforce a mechanic's lien, as a sub-contractor. The opinion presents the facts necessary to an understanding of the questions decided.
Mr. JOSEPH SCHLERNITZAUER, for the appellant.
Messrs. BENNETT & SHERBURNE, for the appellees.
The only question presented upon this record is, did the court below err in dismissing the suit for want of prosecution?
It appears, from the record, that Miller and Rigdon filed their answer to the petition on the 10th day of October, 1872, and that, on the 10th day of January, 1873, the cause was reached on the call of the common law docket, and, not being at issue, was dismissed for want of prosecution. No answer was filed by Whitney, and the record fails to show that appellant had notice of the filing of the answer by Miller and Rigdon.
Although suits to enforce mechanic's lien are, by the statute which authorizes them to be prosecuted, required to be placed upon the common law docket, and to stand for trial at the term to which the summons is returnable, yet, answer, exceptions and replication are to be filed, and the issues made up, as though the proceeding was in chancery. The 23d section of the act relating to liens (1 Gross, 425.) provides that, “in proceedings under the provisions of that act, the courts are vested with all the powers of courts of chancery, and shall be governed by the rules of proceeding and decisions in these courts, so far as that power may be necessary to carry into full and complete effect the provisions of the act, and so far as those rules of proceeding and decision are applicable to cases and questions presented for adjudication and decision.”
It is true, it is provided by the 8th section of the act, that every defendant served with process ten days before the return day thereof, shall answer the bill or petition on or before the day on which the cause shall be set for trial on the docket, and the issue or issues in the cause shall be made up under the direction of the court, and oral testimony shall be received as in cases at law. But this does not authorize the court to cause the issues to be...
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... ... Raustead, 22 Ill. 161; Neiman v. Wintaker, 85 Ill. 468; Moir v. Hopkins, 21 Ill. 557; Linnemeyer v. Miller, 70 Ill. 244; Holloway v. Freeman, 22 Ill. 197.PER CURIAM.We think the circuit court properly refused to set aside the default upon the ... ...
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... ... Deliere, 40 Ill. 80; Ryder v. Twiss, 3 Scam. 4; Aiken v. Webster, 2 Gilm. 416; Smith v. Wilson, 26 Ill. 186; Linnemeyer v. Miller, 70 Ill. 244; C. & A. St. L. R. R. Co. v. Smith, 78 Ill. 96; Brown v. Keller, 40 Ill. 81; Bowman v. Bowman, 64 Ill. 75; Long v. Thompson, ... ...
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... ... The court cannot dismiss a bill for want of prosecution when complainant is not in default. Beams v. Denham, 2 Scam. 58;Linnemeyer v. Miller, 70 Ill. 244.Appellee relies upon the provision of section 116 of chapter 46 of the Revised Statutes, that a case of contested election may ... ...