Muehlfelt v. Vlcek

• Decision Date: 31 July 1969
• Docket Number: Gen. No. 68-184
• Citation: 112 Ill.App.2d 190,250 N.E.2d 14
• Parties: J. C. MUEHLFELT, Harold J. Muehlfelt, Dean Muehlfelt, and Ronald Muehlfelt d/b/a J. C. Muehlfelt and Sons, Plaintiffs, v. Lydia VLCEK a/k/a Lydia Petrauskas, Charlotte A. Petraukas, Adeline A. Kimbark, Frank J. Vlcek, Northwestern Mutual Insurance Company and Bales Lumber and Supply, Inc., Defendants. J. C. MUEHLFELT, Harold J. Muehlfelt, Dean Muehlfelt and Ronald Muehlfelt d/b/a J. C. Muehlfelt and Sons, Plaintiffs-Appellants, v. NORTHWESTERN MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 14

250 N.E.2d 14 112 Ill.App.2d 190 J. C. MUEHLFELT, Harold J. Muehlfelt, Dean Muehlfelt, and
Ronald Muehlfelt d/b/a J. C. Muehlfelt and Sons, Plaintiffs,
v.
Lydia VLCEK a/k/a Lydia Petrauskas, Charlotte A. Petraukas,
Adeline A. Kimbark, Frank J. Vlcek, Northwestern
Mutual Insurance Company and Bales
Lumber and Supply, Inc., Defendants.
J. C. MUEHLFELT, Harold J. Muehlfelt, Dean Muehlfelt and
Ronald Muehlfelt d/b/a J. C. Muehlfelt and Sons,
Plaintiffs-Appellants,
v.
NORTHWESTERN MUTUAL INSURANCE COMPANY, Defendant-Appellee. Gen. No. 68-184. Appellate Court of Illinois, Second District. July 31, 1969.

[112 Ill.App.2d 191]

Page 15

Vescelus, Leetz, Perry & Pollard, Ronald J. Ciancio, Wheaton, for appellants.

Clausen, Hirsh, Miller & Gorman, Chicago, for appellee. James T. Ferrini and William J. Schaefle, of counsel.

ABRAHAMSON, Justice.

On May 29, 1964, the plaintiffs entered into an oral contract with Frank J. Vlcek and Lydia Vlcek whereby they agreed to furnish the necessary labor and material to move a house on to property owned by the Vlceks in DuPage County. The plaintiffs completed the work to be performed by them on October 19, 1964, and submitted their bill for $6,000, the agreed consideration. When no payment was received, the plaintiffs filed their contractor's claim for a lien on the property with the Recorder of Deeds of DuPage County on December 30, 1964. On May 23, 1966, suit was brought to foreclose the lien with Lydia Vlcek, Frank Vlcek, Charlotte Petrauskas and Adeline Kimbark named as defendants.

Prior to these events, Adeline Kimbark, Charlotte Petrauskas, and Lydia Vlcek (then known as Lydia [112 Ill.App.2d 192] Petrauskas) had, on November 22, 1957, mortgaged the property, including a residence then located on it, to First Federal Savings and Loan Association of Berwyn to secure a loan obtained from them. On May 6, 1964, a fire destroyed the residence. Northwestern Mutual Insurance Company had insured the property against loss by fire but because of a dispute as to its cause denied liability to the owners. Northwestern did, however,

Page 16

pay the existing balance on the obligation to First Federal and received an assignment of the mortgage on December 31, 1964. Both the mortgage and assignment were recorded before the foreclosure was instituted.

On November 20, 1967, default orders were entered against the Vlceks, Adeline Kimbark and Charlotte Petrauskas for their failure to either answer or appear to the summons served on them. The plaintiffs then, on December 4, 1967, presented a motion, apparently granted instanter, for leave to add Northwestern as an additional party defendant and to amend their complaint to include an allegation that the lien of the mortgage was subject and inferior to their mechanic's lien. Northwestern answered the amended complaint, denied that the mortgage...