Grace v. Oakland Building Ass'n

63 Ill. App. 339, 1896 Ill. App. LEXIS 808

Opinion

Mr. Presiding Justice Gary

delivered the opinion of the Court.

The opinion of this court in Schroth v. Black, 50 Ill. App. 168, might have been more clearly expressed.

The effect of it, upon the point under consideration, is, that where a statement of a supposed fact is unnecessarily in an exhibit, and the bill contains an averment that the fact is otherwise, upon demurrer the averment in the bill is to be taken as true—not that the meaning or construction, of an exhibit can be changed by any averment in the bill.

The plaintiff in error filed a cross-bill to enforce a mechanic’s lien. The proceeding is under chancery rules by the law in force when the cross-bill was filed, May 25, 1895, as well as by the law which took effect July 1, 1895. Therefore, whatever was alleged by the cross-bill, and material, if not admitted by the answer, must be proved, or no relief can be given. DeWolf v. Long, 2 Gilm. 679, has been adhered to in a great many cases. Nelson v. Pinegar, 30 Ill. 473. Corporate capacity to sue, if not denied by the answer, is an exception. Enos v. Chesnut, 88 Ill. 590.

The master, to whom the case had been referred, reported against the appellants, because, as he truly stated, there are in the claim filed by the appellants, under Sec. 4, Ch. 82, of the law in force when this cross-bill was filed, no dates as to when materials were furnished or labor performed. The appellants therefore had no lien, and the decree dismissing the cross-bill is affirmed. Fried v. Blanchard, 58 Ill. App. 622. Affirmed.