Rochelle Bldg. Co. v. Oak Park Trust and Sav. Bank

• Decision Date: 05 March 1970
• Docket Number: Gen. No. 54270
• Citation: 121 Ill.App.2d 274,257 N.E.2d 542
• Court: United States Appellate Court of Illinois
• Parties: ROCHELLE BLDG. CO., Inc., Plaintiff, v. OAK PARK TRUST & SAVINGS BANK, Vincent DiVito, Lawn Savings and Loan Association, et al., Defendants. LAWN SAVINGS AND LOAN ASSOCIATION, Counter-Plaintiff-Appellee, v. DEE BROS. BUILDERS SUPPLY CO., Vincent Divito, et al., Counterclaimant, Counter-Defendant-Appellant.

Page 542

257 N.E.2d 542

121 Ill.App.2d 274

ROCHELLE BLDG. CO., Inc., Plaintiff, v. OAK PARK TRUST & SAVINGS BANK, Vincent DiVito, Lawn Savings and Loan Association, et al., Defendants.

LAWN SAVINGS AND LOAN ASSOCIATION, Counter-Plaintiff-Appellee, v. DEE BROS. BUILDERS SUPPLY CO., Vincent Divito, et al.,

Counterclaimant, Counter-Defendant-Appellant.

Gen. No. 54270.

Appellate Court of Illinois, First District, Third Division.

March 5, 1970.

George Brode, Chicago, for plaintiff.

Pope, Ballard, Kennedy, Shepard & Fowle, Chicago, for defendants.

DEMPSEY, Presiding Justice.

This is an appeal by Vincent DiVito from the dismissal of a counterclaim filed by him in the above captioned case.

DiVito, a subcontractor, was not paid for the labor and the material he furnished in the construction of an apartment building. His work was completed in March 1965 and in May of the same year he filed a claim for $1,336.84 with the Recorder of Deeds of Cook County. He did nothing further to collect his debt until he was served by publication in the present suit--a foreclosure suit involving the same apartment building.

In December 1965 the plaintiff Rochelle Building Company, another subcontractor whose work had been finished in May 1965 and whose bill for $24,793.94 had not been paid, filed a complaint for the foreclosure of its mechanic's lien. Rochelle named as defendants some twenty parties who had or claimed to have an interest in the premises--among them DiVito. On April 18, 1967, DiVito answered the complaint and filed a counterclaim which made all the other parties defendants. In the counterclaim DiVito alleged that he had entered into a contract to work on the property and had furnished services and material for which he had not been paid. He further alleged that his work under the contract was completed on March 13, 1965.

In March 1969 the receiver for Lawn Savings and Loan Association, which had entered the case as the assignee of the beneficial interest in the land trust, filed a motion to dismiss DiVito's counterclaim on the ground that it was not filed within two years following the completion of his work, as required by section 9 of the Mechanics' Lien Act. The court sustained the motion and dismissed the counterclaim.

Section 9 provides in pertinent part as follows:

'if payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then such contractor may bring suit to enforce his lien by complaint or petition * * *. Any two or more persons having liens on the same property may join in bringing such suit, setting forth their respective rights in their complaint or petition; all lien claimants not made parties thereto may upon application become defendants and enforce their liens by answer to the complaint or petition in the nature of an intervening petition, and the same shall be taken as a counterclaim against all the parties to such suit * * *. Such suit shall be commenced or answer filed within two years after the completion of the contract * * *.' Ill.Rev.Stat., 1965, ch. 82, sec. 9.

In a mechanic's lien foreclosure suit all lien claimants must join as plaintiffs or be joined as defendants so that the trial court can adjust all equities and render a decree properly distributing the proceeds of the sale. Ill.Rev.Stat., 1965, ch. 82, para. 11; Leffers v. Hayes, 327 Ill.App. 440, 64 N.E.2d 768 (1945). The suit must be filed within two years after completion of the contract. A lien claimant who is made a defendant may obtain affirmative relief by filing an answer, but since his answer stands as a counterclaim and is the pleading by which he seeks to enforce his lien it also must be filed within the statutory period to two years. The time limitation applies to subcontractors as well as to contractors, be they plaintiffs or defendants. Chapter 82, paragraph 28. The provision that suit must be brought within two years after the completion of the contract is a condition to the relief made available by the Mechanics' Lien Act. Anderson v. Gousset, 60 Ill.App.2d 309, 208 N.E.2d 37 (1965). The rights afforded by the Act are in derogation of the common law and must be strictly...