{ "id": 2665291, "name": "John G. Kircher, Plaintiff in Error, v. M. Keating & Sons Company et al., Defendants in Error", "name_abbreviation": "Kircher v. M. Keating & Sons Co.", "decision_date": "1908-12-04", "docket_number": "Gen. No. 12,908", "first_page": "1", "last_page": "7", "citations": [ { "type": "official", "cite": "145 Ill. App. 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "47 Ill. 26", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "18 Wall. 350", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 3426134 ], "opinion_index": 0, "case_paths": [ "/us/85/0350-01" ] }, { "cite": "60 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8501218 ], "opinion_index": 0, "case_paths": [ "/ill/60/0328-01" ] }, { "cite": "3 Gilm. 408", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2461998 ], "opinion_index": 0, "case_paths": [ "/ill/8/0408-01" ] } ], "analysis": { "cardinality": 564, "char_count": 12653, "ocr_confidence": 0.513, "pagerank": { "raw": 7.114553146249708e-08, "percentile": 0.427304449023862 }, "sha256": "98070192851b9e6905efba4d1a0c6ac63e1154ed056bf1d95d18908c6640fe2a", "simhash": "1:b1233ea94eb89110", "word_count": 2173 }, "last_updated": "2023-07-14T21:26:10.404962+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John G. Kircher, Plaintiff in Error, v. M. Keating & Sons Company et al., Defendants in Error." ], "opinions": [ { "text": "Mr. Presiding Justice Smith\ndelivered the opinion of the court.\nThis proceeding brings before us the record and decree in the foreclosure of two mechanics\u2019 liens in the Superior Court of Cook county, aggregating $1,330.47 with interest, costs and attorneys\u2019 fees.\nIt appears from the record that George R. Gott owned the four pieces of property involved on October 15 and 25,1901, when the contracts were made with the Central Lumber Company and M. Keating & Sons Company, defendants in error, to furnish the lumber and mill-work necessary to complete the buildings, and to furnish eight consoles for the same. The lumber and mill-work furnished. amounted to $1,259.28. On this amount $228.81 was paid, leaving a balance due on this claim of $1,030.47 for which a lien is claimed. The contract price with,, M. Keating & Sons Company for the consoles put in was $300, for which a lien is also claimed.\nWhen these contracts were made by the owner with the lienors, the four properties in question were subject to twelve trust deeds or mortgages, three on each lot and building thereon, given to secure a part of the purchase money of the land, and money borrowed by the owner as a building loan to construct the buildings. Eight of these trust deeds, two upon each property, conveyed respectively the properties to defendant in error, Edward G. Pauling, as trustee, to secure the payment of the building loan, and four of the twelve trust deeds, one upon each property, conveyed respectively the properties to defendant in error, Axel Chytraus, as trustee, to secure part of the purchase money of the land. Plaintiff: in error owns a note of $3,500 secured by one of the trust deeds to Edward G. Pauling.\nThe proceedings were commenced by the filing of a petition by M. Keating & Sons Company, a corporation, on February 6, 1902, to establish and foreclose a mechanic\u2019s lien upon these four adjacent properties for $300, or $75 on each of the premises, and George E. Gott and Ada B. Gott, his wife, Edward G. Pauling, trustee, Axel Chytraus, trustee, and the \u201cunknown owners\u201d of the notes secured by the several trust deeds were made parties defendant. Gott and his wife and Pauling and Chytraus were personally served and answered. Substituted or constructive service only, based on an affidavit, was made on the \u201cunknown owners\u201d, none of whom appeared. The Central Lumber Company was not then a party defendant. It was given leave later, on April 15, 1902, to file its answer instcmter, and it filed an answer setting up its claim for a mechanic\u2019s lien for the amount above mentioned with interest, and praying that its lien be established. The \u201cunknown owners\u201d were all defaulted on May 9, 1902, on publication made from February 11,1902, to March 4, 1902.\nUpon a reference the master in chancery reported the testimony taken before him and the exhibits, and his findings; and on February 18,1903, the court entered a decree finding that on and prior to October 25, 1901, George E. Gott was the owner of the premises, and that on that date he made a contract with the petitioner, M. Keating & Sons Company, to furnish and set in place eight consoles, two in each building, and that this work was completed on November 25, 1901, and petitioner was entitled to a lien for a total of $300 with interest thereon from December 21, 1901, and for ten per cent, on that amount for solicitors\u2019 fees for the enforcement of said lien.\nThe decree also finds that on or about October 15, 1901, the Central Lumber Company contracted with Gott to furnish lumber and mill-work necessary to complete the buildings,' and that the Lumber Company completed its contract on November 20, 1901, and that on February 20, 1902, there was due it a balance of $1,030.47 for which, with interest and like solicitors\u2019 fees, it was entitled to a lien.\nThe decree also finds that the trust deeds to Pauling as trustee, were executed and delivered on May 14, 1901, each securing the payment of a note for $3,500 bearing interest at six per cent.; and also, that on the same date four other trust deeds to Pauling were executed and delivered, each securing a note of $250 with interest at the same rate; that all these trust deeds were duly filed for record respectively on June 14 and June 17, 1901; that the four trust deeds to Chytraus were executed and delivered on April 17, 1901, one on each of said properties, and each securing the payment of one note of said Gott for $500 with like interest; that the court is unable to determine, because there is no competent evidence, whether said papers represent any present indebtedness or not, but the decree finds that the liens of the trust deeds, if they are liens, are prior and superior to the said mechanics\u2019 liens to the extent of the value of the land at the time of the making of the respective contracts of said lienors; and that the liens of said lienors are prior and superior to the liens of the trust deeds upon the buildings erected upon the land.\nThese proceedings in error are irregular and without precedent. The plaintiff in error sued out this writ of error, in his own name alone, against his co-defendants below, and the original petitioner. No objection, however, is made to the prosecution of the writ on the ground of such irregularity, and all defendants in error have waived the irregularity by joining-in error. The motion of defendant in error M. Keating & Sons Company to dismiss the writ of error, and reserved to the hearing, is based on other and wholly insufficient grounds, and must be denied.\nPlaintiff in error was made a party to the cause, not by name, but as an unknown owner. He may prosecute this writ of error in his own name. Unknown Heirs, etc., v. Rouse, 3 Gilm. 408. He questions by his assignment of errors the jurisdiction of the Superior Court to hear and determine the cause on the ground that the affidavit filed as the foundation of the notice given to \u201cunknown owners\u201d was insufficient. Cross errors are also assigned raising the same question.\nSection 12 of chapter 22 of the Revised Statutes provides that upon the filing of an affidavit by any complainant or his attorney, showing that any defendant, * * * \u201con due inquiry cannot be found\u201d, * * * \u201cand stating the place of residence of such defendant if known, or that upon diligent inquiry his place of residence cannot be ascertained\u201d. Section 7 of the same chapter provides for making unknown owners, who are interested in the lands title to which is sought to be obtained in suits in chancery, parties to said suits or proceedings by the name and description of unknown owners, etc., and for notice by publication as required in the Act.\nThe affidavit filed in this cause in the attempt to comply with the provisions of the above sections of the statute, after other statements not material in this connection, says: \u201cAffiant further says that on due inquiry the name or names of said persons cannot be found and on due inquiry the place or places of residence of said persons cannot be ascertained.\u201d\nThis affidavit, in our opinion, does not comply with the provisions of the statute. Instead of saying that the defendants cannot be found, the affidavit states that the name or names of said persons cannot be found. Instead of saying that the place of residence of the defendants is not known, and that upon \u201cdiligent inquiry\u201d as required by the statute, \u201ctheir places of residence cannot be ascertained \u2019 the affidavit states that on \u201cdue inquiry\u201d the place or places of residence of said persons cannot be ascertained. \"Where a court is exercising an extraordinary power under a special statute prescribing its course of proceeding, that course must be observed and followed exactly, in order to show that its proceedings are coram judice. Haywood v. Collins, 60 Ill. 328; Galpin v. Page, 18 Wall. 350. The facts which give jurisdiction over the person of the defendant ought to appear of record, and if they do not appear the decree may be questioned in both direct and collateral proceedings. Clark v. Thompson, 47 Ill. 26; Schnell v. City of Chicago, 38 id. 383; Morris v. Hogle, 37 id. 150.\nIt appears from the record that the four trust deeds executed to Axel Chytraus, trustee, each secured two notes for $500 each, making $1,000. There is no controversy or dispute as to this fact in the record. The decree finds that each of said trust deeds was given to secure one note for the sum of $500. This is a substantive and material error.\nAt the time the contracts of October 15 and 25, 1901, were made with the lienors, respectively, the several buildings upon which the decree establishes a lien had been nearly completed. The liens of the lienors under the provisions of Section 1 of the Act to revise the law in relation to mechanics\u2019 liens approved June 26, 1895, which governs this proceeding, attached as of the date of the contracts respectively; and the lien extends only to the estate or interest the owner may have in the lot or land at the time of making the contract, or may acquire subsequently. By Section 16 of that Act, it is provided: \u201cWhere, after a trust deed or mortgage has been recorded, contracts shall be made for the improvement of the property, and the owner shall pay for labor or material in such improvement, the enhanced value thereby given shall be treated as a fund in which the mortgage and lien-holder shall participate pro rata.\u201d\nThe trust deeds to Pauling and Chytraus, trustees, were executed and recorded in April, May and June, 1901, long before the lien claimants made their contracts in October, 1901. The status of the property, therefore, with respect to the encumbrances existing on the days when the lien claimants made their contracts is not to be affected or disturbed, under the provisions of the statute, by the subsequent improvements or betterments. This accords also with the principles of equity, for, the lien should not be given such a retroactive effect or force that it would diminish the security of the mortgagees as it existed at the date of the contract. The mortgagees having put their money into the buildings, whereby the buildings had been brought to the point of completion where they were at the dates of the lien claimants\u2019 contracts, are not, by the statute, and should not in equity be disturbed or affected as to their security by the making of new contracts for additional work or materials.\nThis order of priority, as decreed, is obviously, we think, contrary to the provisions of the mechanics\u2019 lien law and is inequitable.\nFor the errors indicated the decree is reversed and the cause is remanded for further proceedings in accordance with the views here expressed, the costs of this court to be taxed against the lienors.\nReversed and remanded.\nMr. Justice Chytraus took no part in the consideration of this case.", "type": "majority", "author": "Mr. Presiding Justice Smith" } ], "attorneys": [ "Carl R. Chindblom, for plaintiff in error.", "Dunn & Hayes and Charles H. Pease, for defendants in error." ], "corrections": "", "head_matter": "John G. Kircher, Plaintiff in Error, v. M. Keating & Sons Company et al., Defendants in Error.\nGen. No. 12,908.\n1. Appeals and errors\u2014effect of joinder in error. Joining in error waives irregularities in suing out a writ of error.\n2. Appeals and errors\u2014status of \u201cunknown owner.\u201d A party joined in an action not by name but as an \u201cunknown owner\u201d may prosecute a writ of error in Ms own name.\n3. Service by publication\u2014when affidavit as to \u201cunknown owners\u201d insufficient. An affidavit as to \u201cunknown owners\u201d is insufficient which, first, instead of saying that the defendants cannot be found, states that the name or names of said persons cannot be found, and second, instead of saying that the place of residence of the defendants is not known and that upon \u201cdiligent inquiry\u201d, as required by statute, \u201ctheir places of residence cannot be ascertained\u201d, states that on \u201cdue inquiry\u201d the place or places of residence cannot be ascertained.\n4. Service by publication\u2014how statutory procedure must be followed. In order to confer jurisdiction upon \u201cunknown owners\u201d by publication the statutory procedure must be observed and followed exactly.\n5. Mechanic\u2019s hens\u2014when do not affect encumbrances. Trust deeds securing loans made and recorded prior to the making of contracts by the owner for the improvement of the property covered by such trust deeds, are not affected or disturbed by the subsequent improvements or betterments made pursuant to such contracts.\nMechanic\u2019s lien. Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge presiding; Heard in the Branch Appellate Court at the March term, 1908.\nReversed and remanded.\nOpinion filed December 4, 1908.\nPetition for rehearing dismissed for want of notice.\nCarl R. Chindblom, for plaintiff in error.\nDunn & Hayes and Charles H. Pease, for defendants in error." }, "file_name": "0001-01", "first_page_order": 19, "last_page_order": 25 }