Clement v. Newton

Citations

• 78 Ill. 427

Syllabus

<p>1. Mechanic’s lien—can not be enforced after taking note of owner of building, without returning note. The fact that a party, seeking to enforce a mechanic’s lien, took the note of the person for whom the work was done, for the work, and traded it off, and the note was -not produced on the trial, and offered to be surrendered, nor any excuse shown for its non-production, would warrant a judgment for the defendant.</p> <p>2. Where the petitioner, in a proceeding to enforce a mechanic’s lien, testified that he had taken note for his work, and traded it to a third party, a motion made to set aside a judgment rendered in favor of the defendant, based upon the affidavit of such third party that he had never received such note from the petitioner, and that he held the beneficial interest in the claim in suit, the attorney of said third party having, on the trial, testified to the same fact, was properly overruled.</p> <p>3. Continuance—on ground of surprise. Where the petitioner, in a proceeding to enforce a mechanic’s lien, testified that he had taken a note for his work, and turned it over to a third party, a motion by the attorney of petitioner for a continuance, on the ground of surprise by such testimony, was overruled: Held, the overruling of the motion was not error.</p>