Hughes v. Russell , 1891 Ill. App. LEXIS 382 ( 1891 )

Moran, J.

By the terms of Sec. 35, Chap. 32, R. S., relating to mechanics’ liens, as it stood prior to the amendment which went into force July 1, 1891, the original contractor,whenever he desired to draw any money on the contract, was required to make out and give to the owner, or his agent, a statement, under oath, of the name of every sub-contractor, mechanic, or workman in his employ, or person furnishing materia], and how much, if anything, is due or to become due to them or any of them; and the owner was to retain out of money due or to become due to the contractor, an amount sufficient to pay all demands due such sub-contractor, mechanic, etc., and pay the same to them according to their respective rights, and payments so made were to be considered the same as if paid to said original contractor. Said section provided that “ any payment made by the owner before 'such statement is made, or without retaining sufficient money if that amount be due, or is to become due, to pay the subcontractors, mechanics, workmen or persons furnishing materials, as shown by the statement, shall be considered illegal, and made in violation of the rights of persons intended to be benefited by this act; and the rights of such sub-contractors, mechanics, workmen or persons furnishing material to a lien shall not be affected thereby.”

The statement of facts shows that appellant had paid something over §800 to the contractor without requiring such statement, and that he did not retain sufficient money in his hands-to pay appellee’s claim. Such payment to the contractors was then illegal, and appellee’s rights were not affected thereby. He gave notice of his claim in accordance with the statute, and .tdok all steps necessary to the maintenance of his action against appellant and the original contractor. Conklin v. Plant, 34 Ill. App. 264; Butler v. Gain, 128 Ill. 23.

It is contended, however, that as this suit was not commenced till after July, 1891, yvhen amended See. 35 went into effect, said amended section governs as to the rights of the parties. The amendment of Sec. 35 was in a particular affecting the rights of parties in their duties and relations to each other under the Jaw, and not in a matter affecting the remedy.

Parties have no vested right in a remedy provided by law, and hence the legislature may properly change the mode of enforcing rights, and the new law will govern as to proceedings instituted after it goes into effect, no matter when the rights sought to be enforced accrued. Turney v. Saunders, 4 Scam. 527; Barton v. Steinmitz, 37 Ill. App. 141; Templeton v. Horne, 82 Ill. 491. But the law in force at the time that rights accrue is the law that measures and limits such rights. The work was performed in this case, and the notice given before any change in the law. The lien was then fixed and the right of action complete. By the law as it then stood the rights and duties of the respective parties are to be ascertained.

Appellee’s rierht to his judgment is clear under the statute in force when his action accrued, and the court committed no error in deciding in his favor.

The judgment of the Superior Court will therefore be affirmed.

Judgment affirmed.