Shore v. Mcmillan

• Citation: 1876 WL 10475,84 Ill. 208
• Parties: LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD CO.v.CHARLES MCMILLAN et al.
• Decision Date: 30 September 1876
• Court: Supreme Court of Illinois

84 Ill. 208

1876 WL 10475 (Ill.)

LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD CO.

v.CHARLES MCMILLAN et al.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Cook county.

Mr. C. D. ROYS, for the plaintiff in error.

Messrs. TENNEYS, FLOWER & ABERCROMBIE, for defendant in error E. P. Allis.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

McMillan, on March 30, 1874, filed his petition against Gillespie, asking a mechanic's lien upon certain real estate in Cook county, for an indebtedness of Gillespie to the petitioner for work and materials in constructing a mill upon the land in question. The petition called for an answer under oath. The other defendants in error came into court, and upon their application were permitted to answer the petition, and each of them interposed a claim for a mechanic's lien upon the same property for like labor and materials, and presented such claims, with prayer for such lien, either by a separate intervening petition, or by incorporating such petition into the answer.

On the 27th of February, 1875, this cause still pending, the plaintiff in error filed an answer in the cause to the original petition and to the several intervening petitions, denying that Gillespie was the owner of the property in question, or had any interest therein, charging that the mill was built with the money of plaintiff in error, taken and used by Gillespie without the knowledge or consent of said plaintiff in error, and charging that, for the purpose of confessing and perpetuating “the property rights” of plaintiff in error, Gillespie, on the 19th of December, 1873, executed to the plaintiff in error a deed of trust, declaring the construction of the mill with the money of plaintiff in error, and intending thereby to affirm and recognize said trust. The answer also denies that the labor and materials mentioned in said several petitions, respectively, was done or were furnished as alleged, and charges that on the 20th day of January, 1874, a petition in bankruptcy was filed against Gillespie in the District Court of the United States for the Northern District of Illinois, asking that he be declared a bankrupt. The answer further charges, that such proceedings were afterwards had, that he was declared a bankrupt, and that the bankruptcy proceedings were then still pending. This answer was sworn to.

By agreement of the parties, this cause, in all its branches, was submitted to the court without the intervention of a jury, with agreement of the parties that it “should be heard according to its merits, as it might appear to the court from the evidence, without regard to the form of pleadings.”

The hearing was had March 29, 1875, and at...