Elkins v. Schillinger ( 1909 )

Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, Elkins, brought an action in the Municipal Court of Chicago under section 28 of the lien law to recover $33.50 alleged to he due him for labor on a building of Mary Schillinger, plaintiff in er-tor, as a subcontractor. The court found in favor of the plaintiff and entered judgment for the amount sued for, and five dollars attorneys ’ fees in the ease. Errors are assigned on the judgment.

Upon an examination of the record we find that the judgment is erroneous upon the merits, and for the reason that it includes an attorney’s fee.

In our opinion the evidence does not, under the law, warrant the conclusion that defendant in error is entitled to a mechanic’s lien on the premises. The plaintiff must prove, in actions brought under this statute, that he has a lien on the premises in order to entitle him to a joint judgment against the owner and contractor. The plaintiff failed'to make this proof. The evidence shows that he is not entitled to a lien. Nb indebtedness is shown and found from the owner to the contractor. The judgment is therefore erroneous. Merritt v. Crane Co., 126 Ill. App. 337; Culver v. Elwell, 73 Ill. 536.

The judgment is also erroneous because it allows an attorney’s fee. Manowski v. Stephan, 233 Ill. 411.

The judgment is reversed but the cause is not re- • manded.

Reversed.