Thielman v. Carr
| Decision Date | 30 September 1874 |
| Citation | 1874 WL 9259,75 Ill. 385 |
| Parties | CHRISTIAN THIELMAN et al.v.CHRISTIAN CARR et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
This was a petition filed by Christian Carr against Thielman, L. A. Nichols, J. H. Clayburn, H. P. Caldwell, Levi Wing and L. J. Clark, to have a mechanic's lien declared and enforced. The petition was subsequently amended, making George Burg, Hugh McClincy, Otto E. Wolf, Adolf W. Wolf, John Runge, Hugo Kotchmann, Carl Lieber, E. K. Hubbard, E. P. Wood, Charles Fitzsimons, Moses A. Thayer, C. A. Lansten, Conrad Lenz and William Daniels, defendants.
Before the commencement of this suit, Charles Fitzsimons had filed his petition for a mechanic's lien against Thielman in the same court.
After this suit was brought, the following other petitions were filed to enforce liens against the same building: Moses A. Thayer against Thielman and others; C. A. Lansten and Conrad Lenz against Thielman and others; and William Daniels and Neil Brown against Thielman and others. In each of these suits several intervening creditors appeared and filed their petitions. These suits were all consolidated and tried as one suit. The other facts necessary to an understanding of the case are stated in the opinion. Christian Thielman, L. A. Nichols, H. P. Caldwell, Levi Wing and L. J. Clark, prosecute this writ of error.
Mr. OMAR BUSHNELL, for the plaintiffs in error.
Messrs. HAINES & TRIPP, for defendant in error, Carr.
Messrs. JOHNSTON, ROGERS & APPLETON, for defendant in error, Fitzsimons.Mr. J. V. LE MOYNE and Mr. CHAS. W. CONSTANTINE, for defendants in error, Burg, etc.
It appears that Thielman determined, in the summer of 1872, to erect a theatre on the premises upon which it is sought to enforce these various liens; that, for the purpose of purchasing and paying for the lot and erecting the building, he borrowed of Dunne, and gave to him his notes for $7,500, and, to secure the payment of the same, executed to Clayborn, on the 17th day of July, 1872, a trust deed on the lot. It was duly acknowledged on that date, and was recorded on the 7th day of September following.
On the 17th day of August, 1872, Thielman contracted with Case for hardware, to be used in the erection of the building, which was furnished, from time to time, as the work progressed, until it was about completed. On the 6th day of September, Fitzsimons contracted to sell lumber for the erection of the building, which he delivered at the time the contract was made. The other contracts with material-men and laborers seem to have been made after the 7th day of September, 1872, the date of the recording of the trust deed to Clayborn, for the use of Dunne.
On the 6th day of September, of the same year, Thielman executed six promissory notes for $500 each, payable to his own order, and due at different times, and gave to H. P. Caldwell a deed of trust on the premises to secure the payment of the same, which was recorded on the next day. These notes seem to have been endorsed and delivered to Nichols, Wing, Caldwell and Clark.
On the 11th of December, in the same year, Thielman joined in a deed of trust to Louis A. Nichols, to secure the payment of $2,550. This latter note was held by Caldwell, Clark, Nichols and Wing, and the evidence shows that none of these notes had ever been paid, but were still due and owing to the holders. This last trust deed was recorded on the 23d of December, after all of the contracts for labor and materials were entered into, and all, or nearly all, delivered and performed.
Petitions for the enforcement of the various liens were filed at different times in the Circuit and Superior Courts of Cook county. The holders of the indebtedness secured by the deeds of trust were made defendants, with the trustee. Subsequently the petitioners in the circuit court obtained leave to intervene and set up their claims in the Superior Court, and the cases were thereupon consolidated and heard as one, and at the same time. On the hearing, the court below decreed that the trust deed to Clayborn is a first and prior lien, and that the materialmen and laborers have the next lien, and that the last two trust deeds are to be postponed until the first lien, and laborers, and material-men are paid. From this decree an appeal is prosecuted and a reversal is asked.
It is first objected, that the court below had no power to consolidate and try these cases as one; that it is opposed to the well established chancery practice to consolidate cases having different parties and involving different rights. This is no doubt the general rule. Miles v. Danforth, 37 Ill. 156. And, as a general proposition, it is true that a defendant cannot have affirmative relief on an ordinary answer, which is not made both an answer and a cross-bill, praying for appropriate relief on the facts set up against the relief sought in the bill. In opposition to such a practice, however, McConnell v. Hodson, 2 Gilm. 640, is referred to as announcing a different rule. But that case must be understood as only holding that an answer which is only responsive to the bill cannot be treated as a cross-bill, so as to decree affirmative relief. But after a defendant has fully answered the bill, no objection is perceived to his then stating new matter, entitling him to such relief as he would in a cross-bill, and ending with an appropriate prayer for relief. We can see no particular merit to be imparted to such pleadings by having them detached and on separate papers. We can see no particular objection, even in form, to such a course. At the ancient common law, in pleadings, it was not considered vicious, in the same paper to reply to one plea and demur to others, or in the same manner, to plead to one count and demur to others, although, at law, form has always been regarded more than in equity proceedings.
The 10th section of the lien law authorizes all persons interested in the subject matter of the suit, or in the premises to be sold, to become parties, on making application to the court in which the suit is pending; and the 12th section provides that the court shall ascertain the amount of each claim, and direct the sale of the premises, and distribute the proceeds to each claimant, in proportion to his claim. The 16th section prescribes the mode of trial, and authorizes the court to delay making an order of sale until all the claimants are heard. From these enactments, it would seem that no practicable means could be employed to have a trial as therein provided, unless resort was had to a...
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