Herbert Boiler Co. v. Lewis

Appellate Court of Illinois

Herbert Boiler Co. v. Lewis

185 Ill. App. 384, 1914 Ill. App. LEXIS 1093

CourtAppellate Court of Illinois

DecidedMarch 10, 1914

DocketGen. No. 19,143

StatusPublished

Cited by2 cases

This text of 185 Ill. App. 384 (Herbert Boiler Co. v. Lewis) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herbert Boiler Co. v. Lewis, 185 Ill. App. 384, 1914 Ill. App. LEXIS 1093 (Ill. Ct. App. 1914).

Pincite

Opinion

Mr. Justice Barnes

delivered the opinion of the court.

This was a suit brought by a subcontractor against the contractor and owners of certain premises for which materials were furnished by the former. Default and judgment were taken against the contractor for want of an affidavit of merits and on plaintiff’s motion the suit was dismissed as to one of the owners, the husband of plaintiff in error.

Section 28 of the Mechanics’ Lien Law (J. & A. if 7166) provides: “All suits and actions by subcontractors shall be against both the contractor and owner jointly, and no decree or judgment shall be rendered therein until both are duly brought before the court. * * * All such judgments, where the lien is established, shall be against both jointly,” etc.

Manifestly the word “owner” must be construed to mean “owners” where the title to the premises is held by more than one person. The only proof on the subject, and that was introduced by plaintiff, was that Mr. and Mrs. Lewis were the owners of the premises in question. It was improper, therefore, to dismiss him out of the case. Under the statute he was a necessary party to the action. The judgment, being against one and not all the owners of the property as well as the contractor, was improperly entered, and will be reversed and the cause remanded.'

Reversed and remoulded.

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Mr. Justice Barnes

delivered the opinion of the court.

This was a suit brought by a subcontractor against the contractor and owners of certain premises for which materials were furnished by the former. Default and judgment were taken against the contractor for want of an affidavit of merits and on plaintiff’s motion the suit was dismissed as to one of the owners, the husband of plaintiff in error.

Section 28 of the Mechanics’ Lien Law (J. & A. if 7166) provides: “All suits and actions by subcontractors shall be against both the contractor and owner jointly, and no decree or judgment shall be rendered therein until both are duly brought before the court. * * * All such judgments, where the lien is established, shall be against both jointly,” etc.

Manifestly the word “owner” must be construed to mean “owners” where the title to the premises is held by more than one person. The only proof on the subject, and that was introduced by plaintiff, was that Mr. and Mrs. Lewis were the owners of the premises in question. It was improper, therefore, to dismiss him out of the case. Under the statute he was a necessary party to the action. The judgment, being against one and not all the owners of the property as well as the contractor, was improperly entered, and will be reversed and the cause remanded.'

Reversed and remoulded.

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Bluebook (online)

185 Ill. App. 384, 1914 Ill. App. LEXIS 1093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herbert-boiler-co-v-lewis-illappct-1914.

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