Citation Numbers: 107 Ill. App. 248
Judges: Ball
Filed Date: 3/19/1903
Status: Precedential
Modified Date: 7/24/2022
delivered the opinion of the court.
This case was placed on the trial calendar pursuant "to rule 5 of the Superior Court, which requires notice of such intended action to be given to the other party. To make the notice effective, that rule must be followed with reasonable strictness, and evidence thereof, either by admission of service or by affidavit of service, must be presented to the court at the time of the hearing of the motion. Confessedly the notice put in evidence was not accepted by the solicitors for Leslie. The affidavit indorsed shows" that it was served on “Miss D. Bethune at 1244 Unity Bldg.” Who she is, is not shown. There is no statement in the affidavit that she then was in the employ of such solicitors, or that she, either directly or indirectly, represented them. ¡Nor is there anything to show that such solicitors then had offices in the “Unity Bldg.” These same solicitors by affidavit deny that they or any of them were served with this notice, and deny that they or any of them knew, or had any reason to know, that such case was on the trial calendar until after the decree was entered herein. The rights of parties can not be thus cut off, nor can their counsel be thus saddled with responsibilities that may ruin them. The alleged proof of service of this notice is wholly insufficient, and said cause was improvidently placed on the trial calendar.
The petition filed in this cause is fatally defective. It fails to allege the making of any contract for such repairs by the petitioners, either with the owner or with the original contractor. It states no time within which the work was to be completed. It alleges no time of payment. It does not state who made these repairs. There is no direct allegation that these repairs were ever made bv any one. Wanting these particulars, the petition does not justify the entry of a decree fixing a lien upon the described premises.
¡Nor are petitioners aided by the recitals in the decree. The allegation therein that “complainants, to maintain upon their part the issues raised by the pleadings in the case; offered and gave in evidence oral proof tending to sustain each and every one of the allegations of their said bill of complaint,” is not a statement of facts found by the court, but, is a conclusion of law, which in and of itself forms no basis for the decree. The evidence, so far as it is recited in detail, goes no further than to support the uncertain and insufficient allegations of the petition.
Further, the evidence as to the statements of claim for lien shows that the petition is improperly framed. Each' of the petitioners filed a separate claim. Each set up a separate and independent contract. Each called for a certain sum of money due to him individually, and not to the petitioners jointly. The decree adds these two separate sums and gives a joint lien for the total amount.
The decree of the Superior Court is reversed and the cause is remanded.