Marion Metal & Roofing Co., Inc. v. Mark Twain Marine Industries, Inc.

• Decision Date: 05 April 1983
• Docket Number: No. 82-419,82-419
• Citation: 448 N.E.2d 219,114 Ill.App.3d 33,69 Ill.Dec. 759
• Court: United States Appellate Court of Illinois
• Parties: , 69 Ill.Dec. 759 MARION METAL & ROOFING CO., INC., a corporation, Plaintiff-Appellee, v. MARK TWAIN MARINE INDUSTRIES, INC., a corporation; North Side Wholesale Co., a corporation; First Community Bank of West Frankfort, Illinois, a banking corporation; The United States of America: Judy Baldwin, d/b/a Above Roofing Co: Unknown Owners & Non-Record Claimants, Defendant-Appellant.

Page 219

448 N.E.2d 219

114 Ill.App.3d 33, 69 Ill.Dec. 759

MARION METAL & ROOFING CO., INC., a corporation, Plaintiff-Appellee, v. MARK TWAIN MARINE INDUSTRIES, INC., a corporation; North Side Wholesale Co., a corporation; First Community Bank of West Frankfort, Illinois, a banking corporation; The United States of America: Judy Baldwin, d/b/a Above Roofing Co Unknown Owners & Non-Record Claimants, Defendant-Appellant.

No. 82-419.

Appellate Court of Illinois Fifth District.

April 5, 1983.

John Drew, Benton, for defendant-appellant.

Winters, Brewster & Permar, Marion, for plaintiff-appellee.

JONES, Justice:

Defendant, Mark Twain Marine Industries, Inc. (hereafter referred to as "Mark Twain"), appeals from an order granting the motion of plaintiff, Marion Metal and Roofing Co., Inc. (hereafter referred to as "Marion Metal"), for summary judgment in an action to foreclose a mechanic's lien against Mark Twain's property. Mark Twain maintains that the granting of the motion for summary judgment was improper because of the existence of a genuine issue as to a material fact. We do not, however, reach the merits of the appeal because of a jurisdictional defect that we raise upon our own motion.

Plaintiff, a supplier of roofing materials, filed a complaint against Mark Twain and others, including defendant North Side Wholesale Co. (hereafter referred to as "North Side"), seeking a mechanic's lien on certain real property owned by Mark Twain. According to the complaint, Judy Baldwin, d/b/a Above Roofing Co., had contracted with Mark Twain to provide Mark Twain with certain services and materials to be used on Mark Twain's property. Marion Metal thereafter made several agreements with Judy Baldwin to provide her with roofing materials to be used on Mark Twain's property. Although Mark Twain paid Judy Baldwin for the work completed, she failed to pay Marion Metal. As a result, Marion Metal claimed a mechanic's lien on Mark Twain's real property.

Mark Twain filed a two-count countercomplaint, directed against Marion Metal and North Side, in which Mark Twain alleged that the materials provided by Marion Metal and North Side were defective when delivered to Mark Twain. Marion Metal moved to dismiss Count I of the countercomplaint, the count directed against it. In an order filed May 21, 1982, the trial court found that the countercomplaint failed to allege the existence of privity of contract between Mark Twain and Marion Metal and dismissed Count I of the countercomplaint for failing to state a cause of action against Marion Metal. North Side likewise moved to dismiss Count II of the countercomplaint, the count directed against it. On June 7, 1982, the trial court found that the counterclaim failed to allege the existence of privity of contract between Mark Twain and North Side and dismissed Count II of the countercomplaint for failing to state a cause of action against North Side. Also on June 7, 1982, a judgment was filed granting Marion Metal's motion for summary judgment with respect to the mechanic's lien and the foreclosure thereof. In that judgment the trial court stated, "This is a final Order of this Court."

Mark Twain filed a notice of appeal from "the Judgment Order entered June 7, 1982, granting Plaintiff's Complaint in case #, 81-CH-34. The relief sought and asked of the Illinois Appellate Court, Fifth Judicial District, is that the Judgment entered for the plaintiff on June 7, 1982, be set aside and that this Court remand to Franklin County Circuit Court for further proceedings." Mark Twain seems to be appealing from the judgment providing for the foreclosure sale of its property in default of its payment of $11,904.91 to Marion Metal and $3,272.37 to North Side.

Mark Twain seeks to appeal from a judgment of foreclosure of a lien. However, as we said in King City Federal Savings & Loan Ass'n. v. Ison (1980), 80 Ill.App.3d 900, 901-902, 36 Ill.Dec. 142, 143, 400 N.E.2d 562, 563, which...