« ForrigeFortsett »
sion in the city of Chicago, both of which lots Mancha Bruggemeyer, for appellant. were subject to a mortgage that had been Charles Vesely (Zeisler, Farson & Friedman, foreclosed, the decree amounting to $6,178.58; of counsel) for appellee. that said part of lot 1 was sold and bid off by the defendant Vanek for the full amount WILKIN, J. (after stating the facts.) of the mortgage indebtedness and costs, there Appellant contends that upon the filing of by discharging said defendant's lot 2, worth the mandate of this court in the superior the sum of $12,000, from the mortgage lien, court that court should have entered an order which lot should have contributed to the pay overruling the demurrer and ordering the ment of the same; that the complainant's appellant to answer the bill, and that it was lot should only have been charged with the error to render a final decree without so payment of one-third of said indebtedness, doing, and that only in default of an answer that being its full proportion thereof accord could it order the bill to be taken as confessing to the relative value of the lots, and ed; also, that it was error on that hearing to that in equity lot 2 should have contributed render a decree without proof. $4,000 and said part of lot 1 only the balance As shown by the foregoing statement of of said decree. The prayer was for contribu facts, the appellant filed a demurrer to the tion and subrogation on that basis. The de last amended bill, which was sustained and fendant Vanek demurred to the bill, which de the bill dismissed for want of equity, and murrer being overruled he elected to stand that decree was affirmed by the Appellate by the same, and thereupon the bill was Court, but reversed by this court. In the taken as confessed and a decree pro confesso consideration of the case when it was before entered for the complainant. The other de us we considered fully all the prior proceedfendants answered the bill, and the cause ings, and held that the appellee had the right was referred to a master in chancery to take to redeem his property. by the payment of the evidence and report his conclusions. On $237.64. In that decision the rights of the October 28, 1901, a decree was entered dis parties were fully considered, the law of the missing the bill as to all of the defendants case settled and the superior court directed except this appellant, and subsequently the to proceed in accordance with the views complainant voluntarily dismissed the bill as therein expressed. The usual practice in to him. Afterwards, and during the same such case would have been, on the redocketterm, complainant moved the court to re ing of the cause to overrule the demurrer and instate the cause, and permit him to file an enter a rule on the appellant to answer the amended bill, which motion was allowed upon bill; but that practice was not necessary in his paying all of the costs to that date, and the absence of anything to show that the a rule was at the same time entered upon defendant asked leave to answer. In the case of the defendant Vanek and his wife to plead, Bruschke v. Nord Chicago Schuetzen Verein, answer or demur thereto within 30 days. 145 Ill. 433, 34 N. E. 417, we said (page 443 Vanek and wife moved to dismiss the amend of 145 Ill., page 419 of 34 N. E.): "It is ased bill, which motion being overruled they signed as error that the court below, upon filed a demurrer to the same, which was sus overruling the demurrer to the bill, did not tained, and complainant then obtained leave grant leave to answer over. The correct to file what he terms an engrossed amended practice on overruling a demurrer to the bill bill against Vanek and wife alone. They is not to render a decree, but to make an again demurred, and their demurrer was sus order requiring the defendant to answer, and tained and the amended bill dismissed for if he does not do so, to take the bill as conwant of equity. Senft prayed an appeal to fessed. We have held, however, that the the Appellate Court for the First District, question whether a defendant should be ruland the decree of the superior court was af ed to answer was one of discretion, and would firmed. 110 Ill. App. 117. He then prose not be reviewed in this court." Miller v. cuted a further appeal to this court, and on Davidson, 3 Gilman, 518, 44 Am. Dec. 715; April 20, 1904, the judgment of the Appel Roach v. Chapin, 27 Ill. 194; Wangelin v. late Court was reversed, and the cause re Gee, 50 Ill. 459. In the Wangelin Case it was manded to the superior court, with directions said (page 470): “Upon the point made by to proceed in accordance with the views ex appellants that the court proceeded to a depressed in the opinion, 209 Ill. 361, 70 N. cree on overruling the demurrer, there was no E. 720. In the report of the case as consider irregularity in that, as the record shows the ed and decided by this court will be found an defendants elected to abide by the demurrer, extended statement of the facts and they need and if they had not so elected it was not necnot be further repeated here. The cause be essary the court should have ruled them to ing redocketed, the superior court decreed answer, but could proceed at once to a dethat the appellant and his wife execute a cree.” The court, by rendering the decree, in special warranty deed to said part of lot 1 effect overruled the demurrer, and the objecto appellee upon his paying them $237.64, with tion is that before taking the bill for confessinterest from August 16, 1900. The latter de ed, it should have made an order upon the cree having been affirmed by the Appellate defendant to answer. This was not necessary Court, this appeal is prosecuted.
under the foregoing authorities, and, as said,
record that the defendant sought to have the / their marriage. In
whether such an order should be made by the Edward O'Bryan and Carl T. Murray, for court of its own motion was one of discre appellant. John Leo Fay, for appellee. tion, not reviewable in this court. Of course, if the defendant had asked leave to answer, HAND, J. This was a bill in chancery fil. the court would have had no discretion, as a ed by the appellant against the appellee, in general rule, to deny the motion. In this case the superior court of Cook county, to set aside the record fails to show that any such request a deed made by the appellant to the appellee was made by the defendant. Manifestly no on March 23, 1904, to certain improved real injury resulted to him by the practice adopted estate situated in the city of Chicago, and by the court. As we have before stated, the which deed was recorded in Cook county. law of the case had been determined by this The case was tried in open court, and a decourt, and the rights of the parties fixed, by cree entered dismissing the bill for want of which, on the reinstatement of the case in the equity, and this appeal has been prosecuted superior court it could do nothing but enter a to reverse said decree. decree accordingly.
The appellant, at the time of the execution The contention that it was error to render of the said deed, was a widower 63 years of the decree without formal proof is also with age, and the appellee a widow about 20 years out merit. When the original bill was an. his junior. About a year and six months swered by the defendants other than appel prior to the date of the deed, the parties, in lant the cause was referred to the master company with an adopted daughter of each, to take the evidence and report the same, set up housekeeping in a house located upon with his conclusions. His report was filed, a part of the property conveyed by said deed. and a decree entered in accordance therewith. Soon thereafter the appellant proposed marThat decree was subsequently vacated by rea riage to the appellee. The appellee declined son of appellee dismissing the bill and filing to entertain his proposition of marriage unan amended bill against appellant alone. Up less he would convey to her his real estate,, on his appeal to this court we found the which consisted of two 25-foot lots; one of relative values of the two lots and that which was improved with a flat building and the appellee should be entitled to redeem his the other with a small cottage, and which lot by the payment of $237.64. The record were of the value of about $9,000, and were on this appeal does not purport to contain any incumbered by a mortgage to the amount of of the testimony, and in that respect is not a $4,000. While the appellant appears to have complete record of the proceedings in the been exceedingly anxious to marry the apcause. We will therefore presume that there pellee, he declined for a time to accede to was sufficient evidence on which to base the her demands as a condition precedent to decree. Moreover, it nowhere appears in this
more nearly the age of appellee commenced case referred to the master to take evidence to pay her attention, when the appellant again or offered to introduce any testimony upon the pressed his suit, whereupon the appellee said hearing.
to him he knew her terms, and if he would There is no reversible error in the record, comply therewith she would marry him. and the judgment of the Appellate Court will The appellant then agreed to convey said real be affirmed.
estate to the appellee if she would send her Judgment affirmed.
other suitor away and marry him. Then they went to a lawyer, who prepared a deed
from appellant to appellee conveying to her (222 Ill. 46)
said property; also a release to appellee JACKSON v. JACKSON.
from appellant of all interest in her property, (Supreme Court of Illinois. June 14, 1906.) present and future, and all claim upon her 1. DEEDS - CONSIDERATION - SUFFICIENCY for support, and the same were executed by MARRIAGE.
appellant and delivered to appellee and the Marriage is a good consideration for a deed.
deed was recorded. Within a few days the [Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, $ 30.]
parties were married and their relation for 2. SAME — CONSIDERATION-PARTIAL FAILURE
a time was harmonious. Within a few - CANCELLATION – RESTORING CONSIDERA
months, however, trouble arose between the TION.
appellee and the adopted daughter of apWhere a man deeaed land to a woman in pellant. The appellant espoused the cause of consideration of marriage, and her promise to be
his adopted daughter, and trouble having a kind and dutiful wife, but she failed to so conduct herself, there was but a partial failure
occurred between the appellant and appellee, of consideration, and equity would not decree he demanded of appellee that she reconvey to rescission, as the wife could not be put in
him the real estate which he had prior to statu quo.
their marriage conveyed to her. The appelAppeal from Superior Court, Cook Coun lee declined to comply, with the demand of ty; Joseph E. Gary, Judge.
the appellant, and from that time forward Suit by Charles F. Jackson against Emma the quarrels and bickerings between the E. Jackson. From a decree dismissing the parties increased. The appellee at one time bill, complainant appeals. Affirmed.
left the appellant and remained away from
him two weeks. They then were reconciled, ance was made a marriage was consumand she returned to their home, where she mated between them in pursuance of their remained for a time, when the parties had agreement, which existed at the time the further trouble and again separated, and the deed was executed, and that they lived appellant filed this bill and the appellee happily together for a time, when they disfiled a bill against him for divorce. The agreed, and that after the disagreement cases were consolidated, and upon the hear occurred between them the appellant insisted ing the bill for divorce was also dismissed. that the property be reconveyed to him.
The theory of the appellant is that at the Whether there was any consideration other time he made said deed to the appellee she than that of marriage moving from the apagreed not only to marry him, but that she pellee to the appellant for the conveyance, would be a kind and dutiful wife to him, and whether said consideration had failed, and that she would use the property and the were questions of fact upon which the testiir come thereof for the benefit of both and mony was conflicting. The chancellor heard for the maintenance of appellant in his old and saw the witnesses, and was in a better age, and that subsequent to their marriage position than we to determine where the she repudiated said agreements by mistreat truth rested. While the appellant was pering the appellant and his adopted daughter, haps foolish to part with his property, he and by claiming to be the absolute owner appears to have advisedly done so, and he of said real estate free from any claim or is not now in a position to reclaim it, as he interest therein of the appellant. The record cannot restore the appellee to the unmarried clearly shows that the consideration for said state in which he found her at the time he deed was the agreement of appellee to marry conveyed the title to her. appellant, and that a lawful marriage was It is insisted by the appellant that the consummated between the parties shortly case of Hursen v. Hursen, 212 Ill. 377, 72 N. .after the execution and delivery of the deed. E. 391, 103 Am. St. Rep. 230, is decisive of It is uniformly held that marriage is a good this case. The deed set aside in that case consideration for a deed. In Otis v. Spencer, was one between husband and wife and was 102 Ill. 622, on page 630, 40 Am. Rep. 617, without consideration, and its execution was this court said: “Marriage, from the earliest obtained through fraud practiced upon the period of the common law, has ever been husband by the wife, and the relief granted held to be a sufficient consideration to sup in that case rests upon equitable considerport a conveyance of land, and such convey ations which do not obtain in this case. It ances have ever been regarded as entitled to is therefore, in principle, not like the case as full protection as conveyances made on at bar. the most ample pecuniary considerations."
The decree of the superior court will be It is, however, urged that appellee at the aflirmed. time she received the deed, promised to be Decree affirmed. a kind and dutiful wife, and to use the property for the joint benefit of herself and the
(222 Ill. 139) appellant, and to support the appellant in his old age, and that she having failed to keep
PIESER et al. v. MINKOTA MILLING CO. said agreements, the consideration for said (Supreme Court of Illinois. June 14, 1906.) deed had failed, and that the presumption ob 1. APPEAL-REIIEARING-TIME FOR MOTION. tains that the appellee obtained the title to
Rule 27 of the Appellate Court for the
First District, providing that a petition for resaid premises with the fraudulent intent to de
hearing shall be filed within 10 days after the prive appellant of his title thereto, and that decision is entered of record, applies only to a he was entitled to a decree rescinding said decision finally determining the cause, and does deed and restoring the title to said premises
not prevent the renewal of a motion to strike
a bill of exceptions more than 10 days after to him. If the contention of the appellant a decision on the original motion. was borne out by the record there would be
2. EXCEPTIONS, BILL OF-TIME FOR FILINGonly a partial failure of consideration, and EXTENSION. a court of equity will not ordinarily decree
Where, on the entry of a judgment on June
22d, 30 days was allowed within which to file a a rescission of a contract where there is only
bill of exceptions, but none was filed within a partial failure of consideration. Selby that time, an order entered on August 13th v. Hutchinson, 4 Gilman, 319; Leopold v. nunc pro tunc as of July 22d, allowing addi
tional time for filing the bill of exceptions, was Salkey, 89 Ill. 412, 31 Am. Rep. 93; Ballance
void. v. Vanuxem, 191 Ill. 319, 61 N. E. 85.
3. APPEAL-BILL OF EXCEPTIONS — STRIKING Especially is this true where the party
FROM RECORD. painst whom rescission is sought cannot be Where it appeared, on appeal to the Applaced in statu quo. Doane v. Lockwood,
pellate Court, that the bill of exceptions was
not presented for signature within the time al115 Ill. 490, 4 N. E. 500. We think it clear
lowed by law, the Appellate Court had power from an examination, of the testimony found to strike the bill from the record, though no in this record that the appellant agreed to
motion was made in the circuit court to strike
it. convey the property in question to the appellee in consideration that she would marry Appeal from Appellate Court, First Dishim; that he made the conveyance freely trict. and voluntarily, and that after the convey Action by Isaac Pieser and others against
SCOTT, C. J. Appellants sued appellee in the circuit court of Cook county in assumpsit. A trial resulted in a judgment, entered at the June term on June 22, 1904, in favor of appellee. Appellants prayed an appeal on that day to the Appellate Court for the First District, which was allowed upon filing an appeal bond within 20 days and bill of exceptions within 30 days. The bond was filed within the time limited. The time for filing the bill of exceptions expired on July 22, 1904, during the July term of the circuit court. On August 13th, being the last day of the July term of the circuit court, no bill of exceptions having up to that time been presented to the judge of the circuit court, and no order extending the time for filing a bill of exceptions having been made or applied for prior to that date, an order was entered in that court nunc pro tunc as of July 22, 1904, allowing 30 days additional time for filing a bill of exceptions. To the entry of this order appellee objected. Further extensions of time were thereafter made, and the bill of exceptions was finally presented to the judge of the circuit court and signed and sealed on October 1, 1904, within the period limited by the last extension. After the case was docketed in the Appellate Court, it was assigned to the branch court, and appellee moved that court to strike the bill of exceptions from the transcript of the record on the ground that the order made on August 13, 1904, extending the time for filing the same, was illegal and void. This motion was denied on January 27, 1905, and on November 14th of that year the judgment of the circuit court was affirmed. On November 28, 1905, a rehearing was granted upon the petition of appellants. Thereupon appellee, on January 2, 1906, again moved the court to strike the bill of exceptions from the transcript of the record, basing the motion upon the same reason as that urged in its support when it was originally made. The case of Hill v. City of Chicago, 218 Ill. 178, 75 N. E. 766, having been decided by this court after the original motion was denied, the branch court, on January 30, 1906, entered an order striking the bill of exceptions from the transcript of the record. In the absence of a bill of exceptions, the errors relied upon did not appear from the transcript of the record, and the Branch Appellate Court accordingly again affirmed the judgment of the circuit court, and appellants bring the record here for review.
It is first urged that the second motion to strike the bill of exceptions from the transcript of the record amounted to an applica
tion for a rehearing of the original motion, and that, not having been made within the time limited by the rules of the Appellate Court for the First District, the branch court was without power to consider the motion when presented the second time Rule 27 of the rules of practice of the Appellate Court for the First District of Illinois pertains to applications for rehearings, and provides that a petition shall be filed within 10 days after a decision is entered of record. We are satisfied from an examination of this rule that the decision therein referred to is a decision finally determining the cause, and the order disposing of the original motion to strike the bill of exceptions was not a decision of that character. There was, therefore, nothing in this rule to prevent the Branch Appellate Court considering this motion when it was the second time presented. From an examination of the authorities, we conclude that the rule in this state in reference to the presentation of a bill of exceptions is this: It must be presented for signature and seal during the term at which the cause is disposed of, or within such further time as shall be limited by the court by an order entered during that term, provided, however, that, if the court shall be in session at any succeeding term before the expiration of such further time, the court may, prior to the expiration of that further time and during such succeeding term, make another order extending the time within which the bill of exceptions may be filed; but if the term at which the cause was disposed of is adjourned, and thereafter the period first fixed for filing the bill expires without an order providing for an extension being made, the court, subsequent to the expiration of that period, is without jurisdiction to make an order extending the time within which the bill may be presented. United State Life Ins. Co. v. Shattuck, 159 Ill. 610, 43 N. E. 389, Hill v. City of Chicago, supra. The case last cited is identical in principle with the one at bar, although there the question arose in regard to the filing of an appeal bond, but the power of the court to extend the time within which an appeal bond may be filed is neither greater nor less than its power to extend the time within which a bill of exceptions may be filed. Appellants rely principally upon the case of Plotke v. Chicago Title & Trust Co., 175 ill. 234, 51 X. E. 754. That case was, in Hill v. City of Chicago, supra, distinguished from the case then under consideration, and the same (listinction obtains here. It follows that the order of the circuit court made on Auggust 13, 1904, was void.
It is also contended by appellants that the Branch Appellate Court had no power to consider this matter, for the reason that no motion was made in the circuit court to strike the bill of exceptions from the record. In support of this position our attention is
called to the cases of Wilder v. House, 40 Ill. 92; Underwood v. Hossack, 40 Ill. 98; Village of Hyde Park v. Dunham, 85 Ill. 569; and Plotke v. Chicago Title & Trust Co., supra. In each of the first three of these cases it did not appear from the transcript of the record but that the bill of exceptions was presented to the judge to be signed and sealed within the time limited by the court, and in the Plotke Case it appeared from the transcript, under the law as stated in that case, that the appeal bond had been filed in due time. In the case at bar it appeared that the bill of exceptions was not presented to the judge of the court for his signature and seal until after the time within which it should, under the law, have been presented to him. Under these circumstances a motion to strike the bill of exceptions, or a transcript thereof, from the transcript of the record, may be properly made and allowed in the Appellate Court, although no such motion has been made in the court in which the bill of exceptions was originally filed.
The judgment of the Branch Appellate Court will be affirmed.
a suit to enforce a lien must be brought with in four months after the final payment becomes due. 5. SAME-CONTRACTS SUFFICIENT TO CREATE LIEN.
A contract for work provided that it should be completed by a specified date, and that final payment should be made within 30 days after the contract was fulfilled, and authorized the architect to make additions or deductions from the contract price on account of alterations in the work and to find the balance due and give his certificate therefor; payments being made on certificates of the architect. Held that, though the final payment, according to the terms of the contract, did not become payable until the certificate was given, the contract specified the time for the completion of the work and a definite time when final payment should be made, rendering it sufficient to create a lien. 6. SAME TIME TO SUE-AMENDED BILL-EFFECT.
An original bill to enforce a mechanic's lien was filed in time. An amended bill, filed after the expiration of the time, set forth the same cause of action, involving the same property, building, work, price, parties, and the date and amount of the architect's certificate. Held, that the amended bill did not state a new cause of action, and limitations had not run against it.
Appeal from Appellate Court, First District.
Suit by John Gebhardt and others against the Joseph N. Eisendrath Company. From a decree of the Appellate Court, affirming a decree for plaintiffs, defendant appeals. Affirmed.
Frank F. Reed and Adams & Froehlich, for appellant. Ernest Saunders, for appellees.
(222 Ill. 113)
GEBHARDT et al. (Supreme Court of Illinois. June 14, 1906.) 1. MECHANICS' LIENS-STATUTES-CONSTRUCTION.
A statute allowing a mechanic's lien is in derogation of the common law, and strict compliance with its terms is essential.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, $ 5.] 2. SAME-RIGHT TO LIEN-WHAT STATUTES GOVERN.
The statute allowing a mechanic's lien, which is in force on the date of the execution of a contract for work in the construction of a building, governs as to the right to a lien and the time for bringing suit to enforce it.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, &$ 2, 9, 10.] 3. SAME-TIME TO ENFORCE LIEN-STATUTES.
Under Laws 1895, p. 225, relating to a mechanic's lien, it is essential that, within four months from the date on which the final payment becomes due and payable according to the terms of a contract, a suit should be brought to enforce the lien, or the claim be filled in the circuit court.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mechanics' Liens, $$ 190–207, 456– 468.] 4. SAME.
A contract for work in the erection of a building provided that the work should be complete by July 1st, that payments should be made on certificates of the architect, final payment to be made within 30 days after the contract was fulfilled, and authorized the architect to make additions or deductions from the contract price on account of alterations in the work and to find the balance due and give his certificate therefor. The final certificate of the architect was given October 5th. Held, that a bill to enforce the lien filed December 16th was in time, under laws 1895, p. 225, providing that
CARTWRIGHT, J. On December 16, 1903, appellees filed in the superior court of Cook county their bill of complaint against appellant to enforce a mechanic's lien for masonry work and materials therefor, furnished in the erection of a factory warehouse in the city of Chicago. On March 11, 1904, appellant answered the bill, admitting the ownership of the premises, but denying that it made the alleged contract for the work or that the same was performed, and denying the right to a lien. A replication to the answer was filed, and the cause was referred to a master in chancery. On November 10, 1904, an amended bill was filed, to which appellant demurred generally and specially. The court overruled the demurrer, and, appellant having elected to stand by it, the amended bill was taken as confessed, the order of reference was vacated, and the court heard evidence and entered a decree establishing a mechanic's lien for the sum of $1,671.11 and costs. On appeal to the Appellate Court for the First District the decree was affirmed, and this further appeal was prosecuted.
The first three propositions of counsel for appellant are correct: First, the statute allowing mechanics' liens is in derogation of the common law, and strict compliance with the statute is essential (Pugh Co. v. Wal