Sutherland v. Ryerson , 24 Ill. 517 ( 1860 )

Walker, J.

This was a petition filed against Buschick, Scoville and Buschick, by Ryerson, Miller and Morris. The Sutherlands and others were made parties, as having, or claiming to have, liens upon, or some interest in the premises, against which the mechanics’ lien was sought to be enforced. The petition alleges that the complainants had furnished materials to erect a building on the premises, to the amount of seven hundred and forty-eight dollars and seventeen cents. They also allege that plaintiffs in error claimed to have a mechanics’ lien, for $325.03 upon the premises, but they deny that it is a lien for more than two hundred dollars. The Buschicks and Miller admit the lien of petitioners as alleged, but make no answer as to the claim of plaintiffs in error. Plaintiffs in error, however, answer, and allege that they have a lien on the premises for the entire sum of three hundred and twenty-five dollars and three cents, and that they have commenced proceedings to enforce it, in another court. On the hearing, the court decreed that petitioners had a lien on the premises, to the extent of their claim, and that it be sold for its satisfaction. .In rendering the decree, the court does not notice the claim of plaintiffs in error, and they now seek to reverse the decree, for the reason, that their claim was not decreed to be paid from the proceeds of the sale of the premises.

The answer, filed by plaintiffs in error, does not pretend to set up, or rely upon, any contract, that would, under the statute, create a mechanics’ lien. They do not allege that any time, was, by the contract, agreed upon for either the delivery of the materials, or for the payment of the money. Had this answer been a petition, there could be no pretense that it disclosed such a state of facts as could create a lien of this character; nor does the evidence in the case, show anything more than the answer. It is not the furnishing of the materials or labor alone, which creates this lien, but it is the contract of the parties, and the furnishing of the labor and materials under it, which have that effect. And a party, to avail himself of the benefit of the statute, whether he be complainant or defendant, must show, by his pleadings and evidence, that his contract comes within its provisions. In this case, the answer fails to show that the parties are entitled to a lien, and is, in that respect, totally defective. Nor is it aided by the allegations contained in the petition, which alleges that plaintiffs in error have a claim against Buschicks and Scoville, for materials furnished in 1855, which they claim to be a lien upon the premises. It likewise alleges that a portion only of the lumber furnished by them was to be used in erecting the building on the premises, and that the value of the portion so used, was not exceeding two hundred dollars, and they have not any just claim or lien on the premises for more than that sum. They do not allege that this debt was a lien, nor do they state facts from which the court can see that such a lien existed. They admit an indebtedness for lumber, a part of which was applied to the building, but do not admit that it was under such a contract as creates a lien, but only that the plaintiffs claim such. Then, as the record fails to disclose such a right in favor of plaintiffs in error, no error is perceived in the decree of the court, in not ordering the payment of their claim out of the proceeds of the sale of the premises.

Again, this court has held that this proceeding is governed in all respects by the rules of chancery practice, except so far as this statute has otherwise provided. This being the case, to have availed themselves of the benefit of their lien, they should have set it up and claimed it in their answer, or by cross-bill. The answer in this case does not insist upon the lien, nor does it pray for any relief, nor is there any indication that it was intended for a cross-bill, or that any relief was desired in this proceeding. The court was not asked to decree the relief now insisted upon, and had no authority to regard the claim of the plaintiffs in error on the hearing under the pleadings in the case. The mere admission, in their answer, that they have a claim, and their naked statement that it is a lien, is not sufficient, and does not authorize the court, on its own motion, to afford affirmative relief.

For these reasons, the decree of the court below is affirmed.

Decree affirmed.