Fergus v. Chicago Sash & Door Co. , 1896 Ill. App. LEXIS 922 ( 1896 )

Mr. Presiding Justice Gary

delivered the opinion of the Court.

January 14, 1895, the Sash and Door company filed a petition for a mechanic’s lien upon premises of Louise L. Fergus, under a contract with her by her husband as her agent, and alleging that Goodrich, Wallace and Burke had, or claimed, some interest in the preiqises. The plaintiffs in error were duly served with summons, but paid no attention to the suit, and the petition was taken as confessed against them. Wallace and Burke were not served, but appeared, and by answer set up their own claim for a mechanic’s lien.

¡No cross-petition was necessary; if they were entitled to a lien, they could have it under an answer. Thielman v. Carr, 75 Ill. 385.

And the plaintiffs in error, having suffered the petition to be taken as confessed, were not entitled to any notice of the taking of testimony before the master, nor, without taking exceptions to his report—as they did not—can they question the conclusions of fact which' he reported. Moore v. Titman, 33 Ill. 358.

By the petition which they were summoned to answer they had notice that Wallace and Burke were parties defendant, and therefore privileged to present and enforce their rights, if they had any. The plaintiffs in error, if they wished to question the claims of Wallace and Burke, should have attended to the case below.

All of the errors assigned, except the twelfth and thirteenth, are as to the findings in the decree, which the plaintiffs in error can not question after default. The thirteenth is that the decree does not contain sufficient findings, which not being noticed in the brief, is waived. Cook v. Moulton, 59 Ill. App. 428.

The twelfth, that the court erred in granting relief to Wallace and Burke without notice to the plaintiffs in error, has been already answered.

The decree is affirmed.