Brady v. Pearson Lumber Co.

58 Ill. App. 417, 1895 Ill. App. LEXIS 61

• Court: Appellate Court of Illinois
• Decided: April 22, 1895
• Status: Published

Opinion

Mr. Justice Gary

delivered the opinion op the Court.

On an application by a stranger to this record, a state of facts is verified by affidavit, which, perhaps might have been the basis of pleas in bar of this writ, but which we can not notice under a joinder in error, or since the statute has dispensed with such joinder, upon briefs upon the merits.

The suit is to enforce a mechanic’s lien against Brady as owner of, and, among others, the plaintiff in error L. Jtomeyn Giddings, as claiming an interest in, premises described. The petition shows affirmatively that no lien existed, because there had been no compliance with Sec. 4 of the Lien Act.

The statement filed was almost literally the same as was held, both by this court and the Supreme Court, insufficient in McDonald v. Rosengarten, 35 Ill. App. 71, 134 Ill. 126. And contrary to our opinion (see Orr v. Needham, 51 Ill. App., and case cited there) the law of this State is settled that against the owner, as well as others, a compliance with Sec. 4 is indispensable. Campbell v. Jacobson, 145 Ill. 389; McIntosh v. Schroeder, 39 N. E. Rep. 478.

No neglect below by a party to a cause will validate against him a decree- when the complainant or petitioner shows, by his own pleadings, that he has no case. Eberstein v. Willets, 134 Ill. 101.

We need not notice any other point, but reverse the decree, and remand the cause with directions to the Circuit Court to dismiss the bill.