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took effect, pending actions to enforce such liens must be governed by prior laws.

2. In the absence of a statute, complainant in an action to enforce a mechanic's lien is not entitled to have a receiver of the property appointed pendente lite.

3. Where a mechanic's lien holder agreed that a subsequent mortgage should stand as a superior lien, the mortgage having been foreclosed and the land sold, no interest remains in the owner to support the lien, and a decree cannot be had for the sale of the property to satisfy it. 4. The mechanic's lien law of 1874 does not authorize the issue of a personal execution in an action to foreclose a mechanic's lien, without first providing for a sale of the property and application of the proceeds to satisfy such lien.

Appeal from appellate court, First district. Action by Albert S. Tyler against Albert J. Stone and another to enforce a mechanic's lien. From a decree for petitioner, an appeal was taken to the appellate court, which affirmed the decree (67 Ill. App. 17); and, from the judgment of affirmance, defendant Stone appeals. Reversed.

The original petition was filed herein on September 22, 1892, and was a petition for a mechanic's lien. It set forth a contract made in 1891 by the appellees with the appellant, for furnishing and setting the glass in a building then being constructed by appellant on a certain lot in the city of Chicago, then owned in fee simple by appellant. The petition alleges that the glass was furnished and set in the building between November 13, 1891, and September, 1892. The original petition made the appellant and the Northwestern Mutual Life Insurance Company defendants. Two other persons were also made defendants, but as to these the suit was subsequently dismissed. An answer was filed by the appellant on January 6, 1893, admitting the making of the contract as set forth in the petition, admitting also the title to be in the defendant as alleged, and furthermore admitting that the contract was performed by the appellees in part, but alleging that it was performed so negligently that some of the glass fell from the doors and windows, and was broken and destroyed, so that appellant was compelled to employ other dealers to replace it, and for that purpose to expend $174.17. On May 9, 1894, the case was referred to a master in chancery, to take and report the evidence and his conclusions. The master filed his report on December 10, 1895, finding that the contract had been made as alleged; that the work had been completed on or about July 7, 1892; and that there was due to petitioners, for principal and interest, on account of glass furnished and set, the sum of $3,330.49; and that petitioners were entitled to a lien on the building and premises to the amount aforesaid. The report of the master recommended that the prayer of the petition be granted. On January 19, 1892, appellant executed a mortgage upon said real estate and building to the Northwestern Mutual Life Insurance Company, to secure a loan of $75.000. Ap50 N.E.-44

pellees agreed that this mortgage should be a lien upon the building and real estate prior and superior to their mechanic's lien. This agreement seems to have been made by the appellees on account of a promise made to them by appellant that he would pay them the amount of their claim out of the money loaned by the insurance company upon the mortgage. On April 16, 1895, the mortgagee, the insurance company, filed its bill in the United States circuit court for the Northern district of Illinois to foreclose said mortgage against the appellant and the appellees and others. In said foreclosure suit in the federal court, appellant and appellees were duly served with summons. On October 23, 1895, a foreclosure decree was therein entered for the amount due upon the mortgage, including interest and costs, and directing that, in default of payment within a certain time, the master in chancery of the federal court should sell the property. On December 4, 1895, under said foreclosure decree, the master sold the said real estate and building to the company, the mortgagee, for the sum of $90,776.27, being the amount due the company under the decree, including interest and costs. A certificate of purchase was issued to the company, as purchaser at said foreclosure sale, on December 5, 1895, and recorded in the recorder's office of Cook county on that day. On certain dates in 1894 and 1895, judgments were rendered in the cir cuit and superior courts of Cook county in favor of certain creditors against the appellant to the amount of $379,335.54, on which executions were issued, and returned nulla bona.

In the mechanic's lien suit, so as aforesaid begun in the court below on September 22, 1892, by the present appellees, a supplemental petition was filed by the appellees on December 12, 1895, and against the appellant and said mortgagee, the insurance company, to which the appellant filed an answer on January 18, 1896. Default was entered against the insurance company in the mechanic's lien suit. On February 21, 1896, the appellees filed in the court below, pursuant to leave granted, an amended supplemental petition, an answer to which was filed by the appellant on February 24, 1896. The amended supplemental petition, filed against the appellant and the insurance company as defendants, sets forth that the original petition for a mechanic's lien was filed on September 22, 1892; that the same was answered by appellant; that default was entered against the insurance company; that the cause was referred to the master; that the master made a report, finding the amount due as above stated; and that appellees were entitled to a lien. The amended supplemental petition also sets forth that a bill to foreclose was filed in the federal court by the insurance company, and that decree of sale was entered, and sale made as herein before stated; that petitioners, the present appel

lees, consented to give the insurance company priority of lien over their mechanic's lien at the request of the appellant; and that appellees, on account of the superiority of the lien of said mortgage, refused to go into the United States court to prosecute their claim for a lien. The amended supplemental petition of the present appellees, so filed on February 21, 1896, "further represents that, under the provisions of the mechanic's lien law now in force, a receiver may be appointed to collect the rents, issues, and profits of real estate on which a mechanic's lien is claimed." The amended supplemental petition also alleges that Stone has failed to pay the appellees the amount due them, and that the building upon the premises is rented, and the appellant is collecting rents therefrom; that judgments, aggregating the amount aforesaid, have been rendered against appellant, which are unsatisfied; that appellant is insolvent; and that, unless a receiver is appointed to collect the rents and profits, the petition of appellees for a mechanic's lien will be nugatory, and the rights of the petitioners will be unduly prejudiced. Said petition therefore prays that a receiver be appointed to take charge of and manage the property, and collect the rents, issues, and profits thereof, with the usual powers of receivers in chancery. The answer of the appellant to the amended supplemental petition denies his insolvency, and charges the appellees with laches in the prosecution of their mechanic's lien suit, and with a failure to adjust with him the amount of credit claimed by him as aforesaid on account of the defective manner in which, as he claimed, the appellees had done their work; but the appellant admits in his answer the allegations of the supplemental petition as to the prior proceedings had in the mechanic's lien suit, as to the proceedings in the federal court, and as to the judgments aforesaid. The answer denies, that the petitioners are entitled to the relief asked and prays the same advantage, as if there had been a demurrer to the amended supplemental petition. On February 27, 1896, in the mechanic's lien suit, the court below appointed one MaKeel receiver to collect the rents of said premises in accordance with the prayer of the amended supplemental petition.

On May 28, 1896, the court below rendered a final decree in the mechanic's lien suit, finding that the appellant, on November 14, 1891, owned said real estate described in the petition; that on November 14, 1891, a contract was made, and glass furnished, and set under the contract, as alleged in the petition. The decree also finds that the mortgage above described was executed to the insurance company, and that the proceedings to foreclose the same, resulting in decree and sale, were had in the United States court, as above stated; that the judgments aforesaid were rendered, and executions upon the same issued, and returned unsatisfied; that

the real estate, having been sold under said foreclosure decree, was scant security for the claim of appellees; that appellant is insolvent; that the claim of appellees for a lien is superior to the lien or claim of all parties, except the lien of said insurance company; that MaKeel was appointed receiver, and qualified; that the building was rented, and producing an income; that the receiver has in his hands a certain amount of rents collected by him, "to which the lien of the petitioners herein ought to attach"; that the moneys in the receiver's hands should be applied in payment of the claim of the petitioners. The final decree orders that the master's report be confirmed; that appellees are entitled to a lien for the amount already specified; that they have a lien on the funds in the hands of the receiver; that the receiver should turn over the funds in his hands to the appellees until the amount due to them shall have been paid, unless appellant pays the same before that time; that petitioners have a mechanic's lien upon whatever interest appellant now has in said real estate and building superior to all liens, except that of the insurance company; that execution is not to issue for the sale of appellant's present interest, unless he should redeem said premises from said sale within the time allowed by law; and in that case, unless the appellant should before that time pay, or cause to be paid, the amount decreed to be due petitioners from him, said master shall proceed to sell the said real estate to satisfy said amount, sale to be in accordance with the statute regulating sales of real estate on execution by sheriffs; that the master should make report of such sale, and, out of the proceeds. pay costs, etc., and the amount due petitioners, and deposit the balance, if any, in court. The decree confirms the interlocutory order, appointing the receiver, and directs the receiver to continue to perform the duties required of him, until 15 months after the sale made December 4, 1895, unless the amount due petitioners is sooner paid, or unless the premises are redeemed by a creditor of appellant. The decree also directs, unless the appellant "shall pay or cause to be paid, within ten days from the date of this decree, to petitioners herein or their solicitor, the said sum of $3,401.66, together with interest thereon at the rate of five per cent. per annum from the date of the entry of this decree, and costs of this proceeding, including $142.50 to the master herein for his fees, that execution issue against said Albert J. Stone, in favor of the petitioners herein, for the amount of this decree, with interest and costs, less whatever may have been paid before that time by the receiver herein to petitioners." The decree also orders that should appellant not redeem from said sale of December 4, 1895, within the time allowed by law, then petitioners may redeem as decree creditors, as of September 22, 1892, as senior judgment credit

ors, "and that execution issue under this decree for that purpose." From the final decree thus entered on May 28, 1896, an appeal was taken to the appellate court. The latter court affirmed said decree, and the present appeal is prosecuted from such judgment of affirmance.

Frank J. Crawford, for appellant. Edward J. Walsh, for appellees.

MAGRUDER, J. (after stating the facts). The decree in this case must be regarded as erroneous in three particulars

1. The decree is erroneous because, being a decree in a mechanic's lien suit, it directs the appointment of a receiver to collect the rents and profits of the property in question. It is true that the act of 1895, entitled "An act to revise the law in relation to mechanics' liens," which was passed and went into force on June 26, 1895, provides, in section 12, that "the court shall have power to appoint receivers for the property, on which liens are sought to be enforced, in the same manner, for the same causes, and for the same purposes as in cases of foreclosure of mortgages," etc. Laws 1895, p. 231. But the proceeding under which the decree in the present case was rendered is not governed by the act of 1895. This action to enforce a mechanic's lien was brought in September, 1892, when the mechanic's lien law of 1874, as amended in 1887, was in force. The master in chancery, to whom the cause had been referred, had not yet filed his report and the testimony by him taken, nor had the decree in the case been rendered, when the act of 1895 went into force. In other words, the present proceeding to enforce the mechanic's lien was pending when the act of 1895 went into force. Section 40 of the act of 1895, after repealing the mechanic's lien laws and the amendments thereto, theretofore existing, contains, at its close, the following proviso: "Provided, that this section shall not be so construed as to affect any rights existing or actions pending at the time this act shall take effect." In the recent case of Andrews & Johnson Co. v. Atwood, 167 Ill. 249, 47 N. E. 387, we said, with reference to this proviso in section 40: "Under this section as to all rights existing or actions pending, the old law was left in force." Indeed, it is a well-settled rule that, in construing a statute, a prospective operation only will be given to it, unless its terms show a legislative intention that it shall have a retrospective effect. Knight v. Begole, 56 Ill. 122; People v. McClellan, 137 Ill. 352, 27 N. E. 181; 15 Am. & Eng. Enc. Law, p. 180. The language of the proviso in question clearly indicates, that it was the intention of the legislature that the act of 1895 should apply only to future cases, and should not have a retroactive operation. It follows that the present proceeding, being an action pending

when the law of 1895 went into force, must be governed by the old law of 1874. The mechanic's lien law of 1874, together with the amendments thereto passed in 1887, did not authorize the appointment of a receiver. In the absence of any statutory provision authorizing it to be done, the complainant, in an action for the foreclosure of a mechanic's lien is not entitled to a receiver of the rents and profits of the property pendente lite. 15 Am. & Eng. Enc. Law, p. 124; High, Rec. (3d Ed.) § 586; Meyer v. Seebald, 11 Abb. Prac. (N. S.) 326, note; Pratt v. Tudor, 14 Tex. 37.

2. The decree was erroneous because, before its rendition, the property, sought to be subjected to the mechanic's lien had been sold under a decree of foreclosure, entered in the United States circuit court in a proceeding to foreclose a mortgage, which is admitted to have been a prior lien to the lien of the present appellees. When the present decree in the mechanic's lien suit was rendered, the appellant had no other interest in the premises than the right to redeem the same from the sale made in the federal court. That sale was made on December 4, 1895. During one year thereafter, the appellant had the right to redeem the property, and was in possession, collecting the rents thereof. We have held that, after a decree of foreclosure of a mortgage and a sale of the mortgaged premises under the circumstances here stated, the mortgagor has no such ownership in the premises as will support a lien for labor done or materials furnished on the premises. Davis v. Insurance Co., 84 Ill. 508; Green v. Sprague, 120 Ill. 416, 11 N. E. 859. It follows that the interest of the appellant, who contracted with the appellees, was devested by the decree in the federal court.

3. The decree is erroneous, for the reason that it is a personal decree against appellant, in favor of appellees, for the sums declared due them, with interest, fees, and costs, and because it decrees that execution shall issue against the appellant, without providing first for a sale of the premises, and for the issuance of execution to make the deficiency after applying the proceeds of the sale upon the decree in favor of the appellees. In Baptist Church v. Andrews, 87 Ill. 172, we held that, on a petition to enforce a mechanic's lien, the twenty-fifth section of the mechanic's lien law of 1874 authorizes an execution to issue for any balance that remains, after selling the property on which the lien exists, but that no provision of that law authorizes a personal execution to issue in the first instance.

For the reasons here stated, the judgment of the appellate court and the decree of the circuit court are reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed. Reversed and remanded.

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KEITH et al. v. HENKLEMAN et al.1 (Supreme Court of Illinois. April 21, 1898.) INJUNCTION BOND ASSESSMENT OF DAMAGES JURISDICTION OF CHANCERY COURT-TRIAL BY JURY-CONSTRUCTION OF CONSTITUTION-DISSOLUTION OF INJUNCTION-LIABILITY OF SURETIES. 1. A court of equity, having jurisdiction to reform and correct an injunction bond, has also jurisdiction to assess the damages thereon.

2. It is discretionary on the part of the chancellor to require issues of fact arising in equity cases to be tried by a jury.

3. Const. U. S. Amend. 7, providing that, "in suits at common law when the value in controversy exceeds $20, the right of trial by a jury shall be preserved," does not refer to suits in chancery courts.

4. Const. U. S. Amend. 7, providing that, "in suits at common law when the value in controversy exceeds $20, the right of trial by a jury shall be preserved," operates as to the national government alone.

5. Const. art. 2, § 5, providing that "the right of trial by jury as heretofore shall remain inviolate," has no application to suits in equity.

6. Under Injunction Act, § 12, providing that the court of chancery, after dissolving an injunction, shall, before finally disposing of the suit, assess such damages as the nature of the case may require, damages may be assessed to the persons entitled thereto on a bill to reform an injunction bond filed previous to the final determination of the suit in which the injunction was issued.

7. When an injunction is dissolved by motion on the face of the bill, attorney's fees necessarily incurred in procuring the dissolution are properly allowed as damages.

8. A stipulation entered into with the principal obligor on an injunction bond, which in no way changes the contract, cannot affect the sureties' liability under the bond.

Appeal from appellate court, First district. Bill by Frederick Henkleman and others against E. G. Keith and others. From a decree of the appellate court affirming a decree for complainants, defendants appeal. Affirmed.

James A. Peterson, for appellants. Tenney, McConnell & Coffeen, for appellees.

MAGRUDER, J. This is an appeal from a judgment of the appellate court affirming a decree of the superior court of Cook county reforming an injunction bond from which the seals of the obligors had been omitted by mistake, and enforcing the bond, so reformed, by assessing the damages recoverable under it. The bond was given upon the issuance of an injunction procured by the appellant John L. Peterson in a bill filed by him against the Brabrook Tailoring Company and others to restrain the sheriff from paying over the proceeds of the sale of the property of that company, which he held under executions in favor of the appellees and others. Upon this injunction bond, Peterson was the principal obligor, and the two other appellants, Keith and Stanton, were sureties. Appellees and certain of the other defendants were obligees in the bond. The case is now here the second time. Our 1 Rehearing denied June 10, 1898.

decision in it when it was here before is reported as Henkleman v. Peterson, 154 III. 419, 40 N. E. 359. Upon the former hearing we held that the injunction bond, which purports by its terms to be a sealed instrument, might be corrected, as against the sureties, by adding to their signatures seals which had been omitted by mistake, and that the bond should be so corrected; its recital showing that it was the intention of the parties that it should be sealed and made sufficient. The judgment then entered reversed the judgment of the appellate court and the decree of the superior court of Cook county, and remanded the cause to the latter court. When the cause was redocketed in the latter court, testimony was taken in reference to the assessment of damages occasioned by reason of the injunction. A decree was entered fixing the amount of such damages, and apportioning them between the complainants, so as to give judgment against the obligors on the bond for the damages occasioned to each of the complainants separately, and so as to relieve appellants from all damages or other liabilities to the other obligees in the bond. The damages assessed by the court below consist of three items,-one of $1,000, one of $208.29, and the third of $21, amounting altogether to $1,229.29. The sum of $1,000 was allowed for solicitor's fees incurred in procuring a dissolution of the injunction. The sum of $208.25 was for interest on the net proceeds of the sale of the property during the time the injunction was in force; that is to say, from January 1, 1891, to May 5, 1891,-the latter date being the date of the dissolution of the injunction. The sum of $21 represented an unpaid balance on the bill for printing abstract and brief.

1. The first question presented is whether the court, having jurisdiction to reform and correct the bond, had also jurisdiction to enforce the bond by assessing the damages occasioned by reason of the injunction, or whether it was necessary for the court to remit the parties to their actions at law upon the bond to recover such damages. We are of the opinion that the court committed no error in assessing the amount of the damages. It is well settled that, when a court of equity has jurisdiction of a cause for one purpose, it will retain such jurisdiction for all purposes. When the controversy requires any purely equitable relief, such as will give a court of equity the right to act, the court will proceed to a determination of all the matters at issue; and in doing so it may establish purely legal rights and grant legal remedies, which would otherwise be beyond its power. The concurrent jurisdiction of equity may thus be exercised over legal causes of action, in order to avoid a multiplicity of suits. 1 Pom. Eq. Jur. § 181. This principle has been applied to cases where equity obtains jurisdiction for the purpose of reforming and correcting an instrument

on account of some mistake, and then proceeds to ascertain the damages recoverable upon the instrument itself. "The court, having acquired jurisdiction for the purpose of reforming the instrument, is not required to stop there, and turn the plaintiff over to a new action to recover his damages, but has the right incidentally to give relief in damages, or in such other mode as justice requires." 2 Beach, Mod. Eq. Jur. § 538. In Bidwell v. Insurance Co., 16 N. Y. 263, which was a proceeding to reform an insurance policy in certain particulars, it was held that the court was not obliged to stop with reforming the policy, and turn the plaintiffs over to a new action to recover their damages. It was there said that when a court of equity has acquired jurisdiction, and has the whole merits before it, it can proceed to do complete justice between the parties. In Welles v. Yates, 44 N. Y. 525, a deed was reformed, and a decree entered against the defendant for the damages caused by his cutting timber from the land. It was there said, "The court, having jurisdiction to amend the contract, thereby acquired the right incidentally to give relief in damages, or in such mode as justice required." In Insurance Co. v. Jaynes, 87 Ill. 199, where a policy of insurance by mistake was made to expire on a day prior to its date, it was held that, in a proceeding by bill in equity to correct the mistake in the policy, it was competent for the court in the same decree to rectify the mistake, and give judgment for the amount due upon the policy as rectified. In Insurance Co. v. Ruckman, 127 Ill. 364, 20 N. E. 77, it was held, in a proceeding where the circuit court decreed the reformation of an insurance policy, that it was proper for the court (the property insured having been destroyed by fire) to enter a decree in favor of the complainant for the amount of his loss. See, also, Insurance Co. v. Gueck, 130 Ill. 345, 23 N. E. 112.

But it is claimed by counsel for appellants that the damages should have been assessed by a jury, upon two grounds: In the first place, it is said that disputed questions of fact in chancery should be tried by a jury. The rule, however, in this state, is that it is discretionary with the chancellor to require the issues of fact arising in equity cases to be tried by a jury before the entry of a decree. The chancellor is the sole judge of the evidence and its weight; and, when he directs an issue of fact to be tried by a jury, to inform his conscience, he may adopt the verdict of the jury, or he may disregard it. It follows that a jury trial is never a matter of right in a chancery case. The verdict of the jury in such cases is advisory, merely, and not binding upon the chancellor. Milk v. Moore, 39 Ill. 584; Russell v. Paine, 45 Ill. 350; Maynard v. Richards, 166 Ill. 466, 46 N. E. 1138; Guild v. Hull, 127 Ill. 523, 20 N. E. 665. In the second place, it is contended that the appellants were entitled

to a jury trial as to the amount of damages to be assessed against them, under both the constitutions of the United States and of the state of Illinois. The provision of the federal constitution relied upon is the seventh amendment, which reads as follows: "In suits at common law, when the value in controversy shall exceed $20.00, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." This provision is by its very terms limited to suits at law, and does not refer to suits in chancery courts. In addition to this, the first 10 articles of amendment to the federal constitution were not intended to limit the powers of the state governments in respect to their own people, but to operate on the national government alone. Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 21. In Iowa Cent. Ry. Co. v. Iowa, 160 U. S. 389, 16 Sup. Ct. 344, it was held to be no denial of a right protected by the constitution of the United States to refuse a jury trial in a civil case pending in a state court, even though it may have been clearly erroneous to construe the laws of the state as justifying the refusal. The provision of the state constitution referred to by counsel is section 5 of article 2, which reads as follows: "The right of trial by jury, as heretofore enjoyed, shall remain inviolate," etc. This provision introduced no new rule of law, but merely preserved the right already existing. It does not apply to suits in equity, or to any statutory proceeding to be had in courts of equity. We have held that under our present constitution the right of trial by jury is preserved, but that the foregoing provision has no reference to cases in which courts of equity have jurisdiction, and that the right to such trial does not extend to cases in equity, but is confined to cases at law. Ward v. Farwell, 97 Ill. 593; Flaherty v. McCormick, 113 Ill. 538; Harding v. Fuller, 141 Ill. 308, 30 N. E. 1053. We are of the opinion that by the assessment of damages without calling a jury the court below invaded no right of the appellants, either under the federal constitution or under the state constitution.

2. It is further claimed on behalf of the appellants that damages could not be assessed upon the bond, because the suit in which the bond was given had not been finally determined on its merits when this bill was filed, and because this injunction was dissolved by motion on the face of the bill. This contention is without force. By the terms of the bond the appellants agreed to pay such damages as were occasioned by the wrongful issuing of the injunction, and also such damages as might be awarded the complainants in case the injunction should be dissolved. It is not denied that the injunction was dissolved prior to the filing of this bill, and it also clearly appears that the injunction was wrongfully issued. It makes

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