Angerer v. Southern Traction Co. , 203 Ill. App. 25 ( 1916 )

Mr. Justice Boggs

delivered the opinion of the court.

4. Assignments, § 31^*—when Men of railroad subcontractor is enforceable by his assignee. The lien of a subcontractor under the railroad lien statute is enforceable in equity by the assignee of such contractor suing in the name of the latter, distinguishing the case of Cairo & V. R. Co. v. Fackney, 78 Ill. 116. 5. Limitation oe actions, § 64^*—what constitutes statement of new cause of action in amended bill claiming railway subcontract- or’s lien. Where an amended bill claiming a subcontractor’s lien under the railroad lien statute was filed more than three months after the lien had accrued, including therein extra materials not included in the original bill filed within said three months, held that the claimant would not be entitled to a lien for such extras for the reason that, as to them, said amended bill set forth a new cause of action. 6. Interest, § 76^*—when not allowed. Unless interest is asked in a bill claiming a lien under the railroad lien statute, the court would not be authorized to decree interest to such claimant. 7. Railroads, § 408^*—when .party is not in position to insist upon determination of priority of lien. Where a railroad company, against which and its general contractor, a railroad lien proceeding was instituted for the construction of its road, by a subcontractor, was shown to be in the hands of a receiver, and the general contractor in the bankruptcy court, and a bank, also made a defendant to the proceeding, appeared by its answer to hold certain bonds of said company as collateral security for a loan made by such bank to certain individuals, and appeared to be defendant in another suit in a federal court with reference to the same bonds and had been enjoined from turning them over to anybody, held that aside from the bankruptcy and receivership proceedings the bank was not in a position to insist on a decree giving it a prior lien on the property involved. 8. Appeal and error, § 1666^*—when right to raise question as to nonjoinder of party defendant is waived. Where, in a subcontractor’s proceeding under the railroad lien statute, an amended bill was filed after the expiration of three months from the accrual of the lien claimed, making a new defendant a party to such proceeding, who neither by plea in abatement, demurrer nor plea of the statute of limitations raised the question in the trial court of the right to maintain such proceedings by reason of such defendant not having been made a party thereto within the three months specified in said statute, held that such defendant waived the right to raise such question and could not for the first time present the same in the Appellate Court. 9. Railroads—when objection that defendant should have been made party to intervening petition in subcontractor’s proceeding for lien is without merit. Where, in a subcontractor’s proceeding under the railroad lien statute, another subcontractor intervened, claiming also in part as a judgment creditor, an objection on the part of a defendant in the original proceeding, who claimed a lien as a bondholder, that it should have been made a party to .the intervening petition, held to be without merit, since such petition amounted, in effect, to an answer and not to a cross-bill.