Spencer v. Mueller 186 Ill. App. 53

Nettie L. Spencer et al., Appellants, v. Theodore C. Mueller, et al., Defendants. C. M. Anderson and A. W. Anderson, copartners, Appellees.

Gen. No. 19,352.

(Not to he reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanash, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1913.

Affirmed.

Opinion filed April 21, 1914.

Statement of the Case.

Bill by Nettie L. Spencer and Albert Lang, trustee, against Theodore O. Mueller, O. M. Anderson and A. W. Anderson, copartners, etc., to forclose a trust deed securing certain notes executed by Theodore O. Mueller and Anna, his wife, owners of the conveyed premises, on which they contracted for the erection of certain improvements. Spencer was the holder of the notes *54and Lang was the trustee and also occupied the relation of contractor for the improvements. Anderson Brothers were the subcontractors and were made defendants to the bill. The Anderson Brothers in their answer, in the nature of an intervening petition, set up a claim for a mechanic’s lien. A mechanic’s lien was decreed against the premises and from that part of the decree, complainants appeal.

Adams, Crews, Bobb & Wescott, for appellants.

F. W. Balcomb, for appellees; Charles D. McGrath, of counsel.

Abstract of the Decision.

1. Mechanics’ Liens, § 147*—when filing of intervening petition for lien not premature. Where subcontractors in a proceeding to foreclose a trust deed in which they were made party defendants filed intervening petitions on March 20th setting up their, claim for a mechanic’s lien, and subsequently on June 28th filed amended petitions, it appearing that their notice to the owner of their lien was served on March 25th, held that the proceeding to enforce the lien was not premature under section 28 of the Mechanics’ Act (J. & A. V 7166) providing suit may be brought ten days after service of notice where issue was taken on the amended petitions.

2. Mechanics’ liens, § 212*—matters which cannot he complained of hy appellants on appeal from decree allowing lien in foreclosure proceeding. On appeal from a decree in a foreclosure proceeding allowing a mechanic’s lien to subcontractors who were made parties defendant, held that appellants, who where complainants to the bill to foreclose, could not complain that the subcontractors’ intervening petitions for a lien were filed before notice of lien was served on the owner, nor complain that such notice was served on only one of the owners, it appearing that the owners assigned no cross-errors as to the time of filing the petitions, and it was not questioned but that the decree for lien was good as against the interest of the owner who was served with the notice.