{ "id": 5509376, "name": "Fifty-ninth Street Lumber Company, Appellant, v. John T. Emery et al., Appellees", "name_abbreviation": "Fifty-ninth Street Lumber Co. v. Emery", "decision_date": "1925-06-09", "docket_number": "Gen. No. 29,646", "first_page": "416", "last_page": "419", "citations": [ { "type": "official", "cite": "237 Ill. App. 416" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "134 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5438243 ], "opinion_index": 0, "case_paths": [ "/ill/134/0046-01" ] }, { "cite": "159 Ill. 446", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3134271 ], "opinion_index": 0, "case_paths": [ "/ill/159/0446-01" ] }, { "cite": "130 Ill. 457", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 12128585 ], "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/ill/130/0457-01" ] }, { "cite": "163 Ill. 39", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5510018 ], "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ill/163/0039-01" ] }, { "cite": "295 Ill. 515", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5068044 ], "opinion_index": 0, "case_paths": [ "/ill/295/0515-01" ] } ], "analysis": { "cardinality": 379, "char_count": 7232, "ocr_confidence": 0.551, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.16057384040536726 }, "sha256": "b3715adb6d4c908409f3ab3a768b64f90bd73e51ed8bfcd19dacde4b2b77ba70", "simhash": "1:078e83cd147caedd", "word_count": 1230 }, "last_updated": "2023-07-14T15:10:16.980379+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Fifty-ninth Street Lumber Company, Appellant, v. John T. Emery et al., Appellees." ], "opinions": [ { "text": "Mr. Presiding Justice Fitch\ndelivered the opinion of the court.\nThis is an appeal from an order dismissing complainant\u2019s amended bill for a mechanic\u2019s lien. There were four defendants, viz., the owner, her husband, the trustee named in the trust deed of the premises and the holder of the notes secured thereby. The two last-mentioned defendants filed a general and special demurrer to the bill as amended, alleging particularly that the description of the premises in question, both in the bill and in the notice of lien, was indefinite and uncertain. The court sustained the demurrer. The complainant elected to stand by his amended bill and thereupon the court ordered the bill dismissed with costs.\nThe mechanic\u2019s lien notice, a copy of which is attached as an exhibit to the bill of complaint, describes the premises as follows:\n\u201cLots Seven (7) and Eight (8) Block Twenty-three (23) or Lots Nineteen (19) Twenty (20) and5 Twenty-one (21) Block Twenty-four (24) Crandall\u2019s Oak Lawn Subdivision, a Subdivision of West one-half (W. y2) Southwest one-quarter (S. W. %) or part East one-half (E. y2) Southwest one-quarter (S. W. 14) of Section Four (4) Township Thirty-seven (37) North, Range Thirteen (13) otherwise known as 9414 S. 54th Place, Chicago, Illinois.\u201d\nIn the bill as originally filed, the premises were described in the same manner except the last clause, which read: \u201cotherwise known as 9414 54th Place, Oak Lawn, Illinois.\u201d The amendment to the bill, filed by leave of court, merely struck out the words: \u201cor lots nineteen (19), twenty (20) and twenty-one (21), Block twenty-four (24),\u201d and the word \u201cor\u201d where it appears in the latter part of the description. In other words, the description of the premises upon which the lien was sought, both in the mechanic\u2019s Hen notice and in the original bill, was in the alternative; and while the amendment changed the bill by striking out one of the alternative descriptions, it did not allege that the Hen notice had been so changed, or that a new notice had been given.\nComplainant\u2019s counsel insist that the description of the premises by street and number corrects any mistake in the previous description. But the street named in the notice is \u201cS. 54th Place, Chicago,\u201d while the street named in the bill, as amended, is \u201c54th Place, Oak Lawn.\u201d We cannot take judicial notice that \u201cS. 54th Place\u201d is the same street as \u201c54th Place,\u201d nor that \u201cOak Lawn\u201d is in Chicago, if such are the facts; and, if we could assume that such are the facts, still the alternative descriptions remain in the notice, making it impossible to identify therefrom the lots or parcels of land upon which the lien was claimed.\nThe notice as filed being insufficient, and the amendment to the bill having been filed more than four months after the alleged date of the last delivery of materials under the contract, the lien could not be enforced as against or to the prejudice of the incumbrancer or trustee (North Side Sash & Door Co. v. Hecht, 295 Ill. 515), and the demurrer was therefore properly sustained.\nBut the demurrer was filed only by the trustee and the holder of the incumbrance. As to them, the bill was clearly demurrable; but the statute (Mechanics\u2019 Liens Act, sec. 7 [Cahill\u2019s St. ch. 82, 7]) provides that as against the owner a claim for mechanic\u2019s Hen may be filed \u201cat any time after the contract is made and within two years after the completion\u201d thereof, \u201cand as to such owner may be amended at any time before the final decree.\u201d Under section 9 of the same Act [Cahill\u2019s St. ch. 82, 9], a suit to enforce a lien against the owner may be commenced at any time within such two years. The order dismissing the bill is not limited to the defendants who demurred. It appears that the owner and her husband were personally served with process and defaulted, and it was error to dismiss the bill as to them.\nFollowing the practice approved in cases where a part only of the order or judgment appealed from was erroneous and no error had intervened prior to the entry of the judgment (Gage v. People, 163 Ill. 39, 41; Harris v. People, 130 Ill. 457, 464; Wallace v. People, 159 Ill. 446; McNulta v. Ensch, 134 Ill. 46) the order of dismissal will be reversed and the cause remanded with directions to enter an order dismissing the bill only as to the defendants who demurred.\nReversed and remanded with directions.\nBarnes mid Gridley, JJ., concur.", "type": "majority", "author": "Mr. Presiding Justice Fitch" } ], "attorneys": [ "Wyatt B. Angelo, for appellant.", "Philip Gothberg and O. D. Olson, for appellees." ], "corrections": "", "head_matter": "Fifty-ninth Street Lumber Company, Appellant, v. John T. Emery et al., Appellees.\nGen. No. 29,646.\n1. Evidence \u2014 judicial notice of street locations. Where a mechanic\u2019s lien notice described the premises as \u201cS. 54th Place, Chicago,\u201d and in the amended bill they were described as \u201c54th Place, Oak Lawn,\u201d judicial notice was not taken that \u201cS. 54th Place\u201d is the same street as \u201c54th Place\u201d nor that Oak Lawn is in Chicago, even if such were the facts.\n2. Mechanics\u2019 liens \u2014 insufficiency of description in notice. Where alternative descriptions of the property in a notice for mechanic\u2019s lien makes it impossible to identify therefrom the lots or parcels of land upon which the lien is claimed, the notice is insufficient.\n3. Mechanics\u2019 liens \u2014 alternative descriptions in lien notice corrected by street number. Where a mechanic\u2019s lien notice described the land in the alternative, the giving of a street and number therein did not operate to correct the vice, where the alternative remained and the amended bill gave a different street and number.\n4. Mechanics\u2019 liens \u2014 when lien not enforceable against incumbrancer and trustee. Where the notice for a mechanic\u2019s lien was insufficient and the amendment to the bill, attempting to correct the mistake, was filed more than four months after the alleged date of the last delivery of materials under the contract, the lien could not be enforced as against or to the prejudice of an incumbrancer or the trustee; and a bill joining the owner, her husband, the trustee named in the trust deed of the premises and the owner of the secured notes was demurrable as to the latter two.\n5. Mechanics\u2019 liens \u2014 when bill improperly dismissed against owner for defective notice. An amended bill for a mechanic\u2019s lien, joining as defendants the trustee, the incumbrancer and the owner, was improperly dismissed as to the owner upon the sustaining of a demurrer filed only by the trustee and incumbrancer on the ground of the insufficiency of the notice, and the filing of an amended bill more than four months after the last delivery of materials under the contract, since as to the owner he could amend within two years.\n6. Appeal and bbbob \u2014 when judgment reversed and remanded with directions. An order improperly dismissing a bill for a mechanic\u2019s lien as to all defendants, upon the sustaining of a demurrer by several defendants, was reversed with directions to enter an order dismissing the bill only as to the defendants who had successfully demurred.\nAppeal by plaintiff from the Circuit Court of Cook county; the Hon. Iba Ryneb, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.\nReversed and remanded with directions.\nOpinion filed June 9, 1925.\nWyatt B. Angelo, for appellant.\nPhilip Gothberg and O. D. Olson, for appellees." }, "file_name": "0416-01", "first_page_order": 446, "last_page_order": 449 }