Culver v. Elwell

Citations

• 73 Ill. 536

Syllabus

<p>1. Practice—issue must be made before trial, if demanded. Where the attention of the court is called to the fact that no replication has been filed to the answer of defendant, and defendant objects to proceeding in the cause until an issue is made, it is error for the court to disregard the objection and compel the trial to proceed.</p> <p>3. Mechanic’s lien—answer setting up claim of a like lien is in nature of a cross-bill. The answer of a sub-contractor, to a petition filed by another sub-contractor, for a mechanic’s lien, setting up a like claim, is in the nature of a cross-bill, and it is error to compel the owner of the property on which the lien is claimed to go to trial, without an opportunity to answer the same.</p> <p>3. Same—-fund out of which sub-contractor is to be paid. The money which may remain in the hands of the owner, and due to the original contractor, after all deductions are made to which the owner is entitled, is the fund, and the only fund, out of which sub-contractors are to be paid.</p> <p>4. A decree in favor of sub-contractors for a mechanic’s lien, which is against the owner of the property alone (the original contractor being a party to the suit and duly served), and not being in any way dismissed from the case, and there being no finding of any kind as to him, is erroneous.</p> <p>5. Same—when against several buildings. Where a mechanic’s lien is sought against several separate buildings, the decree must be against each, for the value of work and material on it, and not against all for the aggregate value of work and material on all.</p> <p>6. Same—suit for labor and material no bar. Tire fact that a suit, by a sub-contractor, against the owner and original contractor, has been brought before a justice of the peace, under the statute, and is still pending, is no bar to his enforcing his lien by decree.</p>