Peterson v. Mayer , 142 Ill. App. 257 ( 1908 )

Mb. Presiding Justice Thompson

delivered the opin- ¡ ion of the court.

The record does not show that any judgment was rendered in bar of the action but both parties have treated it as a final judgment and the case will be considered on the merits of the pleadings.

There is incorporated in the record a bill of particulars filed subsequent to the filing of the declaration. The bill of particulars is no part of the declaration and not properly a part of the record when not incorporated therein by a bill of exceptions.

The special plea of former adjudication sets forth that the demurrer in the lien proceedings was a special demurrer and does not allege that the former judgment was on the merits. The appellee contends that the plea sets up a legal bar to the action under section 13 of chapter 82 of the statute (Mechanic’s Lien, Statute in force July 1, 1903), which provides: “Defendant shall answer the bill. * * * The owner shall be entitled to make any defense against the contractor by way of set off, recoupment or counter claim that he could in any action at law, and shall be entitled to the same right of recovery on proof of such in excess of the claim of the contractor against the contractor only but for matters not growing out of the contract such recovery shall be without prejudice to the rights of the subcontractors thereunder for payment out of the contract price or fund; and in the event that the court shall find, in any proceedings in chancery, that no right to a lien exists the contractor shall be entitled to recover against the owner as at law and the court shall render judgment as at law for the amount which the contractor is entitled to, together with the costs in the discretion of the court. * *

It is insisted by appellant that the lien law in force prior to July, 1903, governs the rights of the parties to this suit, and that the section quoted has no bearing on this case. So far as the rights of the parties to a lien are concerned that is a correct statement. The legislature however had a right to change the remedy so long as it did not interfere with contract rights. A change of remedy or of the course of procedure does not change the rights of the parties. The legal procedure must be pursuant to the law of procedure in force existing at the time the suit is prosecuted. ‘£ There can be no vested right in any particular remedy or in any special manner of enforcing it.” Woods v. Soucy, 166 Ill. 407; 6 Am. & Eng. Ency. of Law 947 (2nd ed.).

This statute from its language would only appear to apply to suits where an answer had been filed and the ' evidence heard. If the facts averred in the bill show there was no remedy in equity, then it was the constitutional right of each party to have the controversy tried by a jury. If the statute is given the construction that the provision for a recovery as at law only applies after answer and trial, then the construction we have given it might render it constitutional, and it is the duty of this court to give it such construction as would hold it constitutional. Havens & Geddes Co. v. Diamond, 93 Ill. App. 557; Endlieh on Interpretation of Statutes, 178. The court could not find that the contractor was entitled to recover without hearing the evidence. The plea avers that it was a special demurrer upon which the judgment was rendered in the chancery case, dismissing that suit for want of equity. A judgment for the defendant upon sustaining a general demurrer to a bill in equity is not a bar to a subsequent suit at law, where the ground for sustaining the demurrer is that complainant has mistaken his remedy, which was at law. Farmer’s & Mechanic’s Life Assn. v. Caine, 224 Ill. 599. The plea should either aver that the adjudication in the chancery case was on the merits, or better pleading would be to aver such facts that it can be seen such was the fact. The judgment is reversed, with directions to sustain the demurrer.

Reversed and remanded.