{
  "id": 5108668,
  "name": "John Whitlow v. Newton Champlin",
  "name_abbreviation": "Whitlow v. Champlin",
  "decision_date": "1894-03-23",
  "docket_number": "",
  "first_page": "644",
  "last_page": "648",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
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    {
      "cite": "90 Ill. 71",
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    {
      "cite": "145 Ill. 389",
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    {
      "cite": "40 Ill. App. 62",
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    {
      "cite": "128 Ill. 23",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T20:04:33.379321+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "John Whitlow v. Newton Champlin."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Sample\ndelivered the opinion of the Court.\nThe section referred to in the statement provides that \u201c Every creditor or contractor who wishes to avail himself of the provisions of this act, shall file with the clerk of the Circuit Court of the county in which the building * * * is situated, (1) a just and true statement of account or demand due him after allowing all credits, (2) setting forth the times when such material was furnished or labor performed, (3) containing a correct description of the property to be charged with the lien, (4) and verified by anaffidavit.\nAny person having filed a claim for a lien as provided in this section, may bring a suit at once to enforce the same by bill or petition in any court of competent jurisdiction in the county where the claim for a lien has been filed.\u201d\nThe proceeding to enforce a mechanic\u2019s lien is statutory, and as frequently decided, the provisions of the statute must be complied with in order to give the court jurisdiction. Butler et al. v. Gain, 128 Ill. 23, and cases there cited. The position of the appellee is, that the filing of the petition with the exhibits attached, sworn to, is a compliance with the statute, and that it is not necessary to file a separate claim prior to the filing of the petition. In view of the decisions of the court, as well as the language of the section referred to, we are constrained to take a different view and hold that the filing of such claim in compliance with said section is a prerequisite to the right to file a petition to enforce the lien or to give the court jurisdiction.\nThe section is very explicit in providing that if the \u201c creditor or contractor wishes to avail himself of the provisions of the act, he shall file with the clerk a just and true statement of account,\u201d etc. Then it further provides, as if to leave no doubt of the purpose of the legislature, \u201c Any person having filad a claim, for a lien * * * may bring a suit at once.\u201d\nClearly by this language the bringing of the suit must be preceded by filing a claim \u201c as provided in this section.\u201d\nIt has been contended, however, that sections 4 and 28 should be construed together, as, in effect, one section, in which case it is insisted the filing of a claim with the clerk of the Circuit Court is only required as to other creditors, incumbrancers or purchasers.\nThere is much force in this construction, if it is assumed the purpose of the requirement was merely to protect the interest of third parties, as creditors, incumbrancers, or purchasers. But evidently the legislature intended by Sec. 4, to make such provision apply for the benefit of the owner as well. By this requirement the owner is furnished with definite information of the extent and particular character of the claim, which can not be shifted, changed or enlarged; in other respects the requirements may also be beneficial to the owner. Had it been intended to apply solely to third parties, and to the exclusion of the owner of the property, different language would have been used.\nTo exclude owners from the benefit of the provisions of section 4 by construction, would apparently be doing violence to the plain meaning of words.\nThis court in the case of Boals v. Dutrup, 40 Ill. App. 62, said with reference to Secs. 4 and 28: \u201c These sections being construed together do not obviate the necessity of filing the verified statement provided for in Sec. 4.\u201d In the case of Campbell v. Jacobson et al., 145 Ill. 389, it is said, with reference to the effect of Sec. 28 on Sec. 4, that \u201c It has not the effect of dispensing with the filing of the claim, where the lien is sought to be enforced only against the owner of the premises.\u201d \u201c There is nothing giving countenance to that view in the language of section 4, its provisions being, that every creditor or contractor wishing to avail himself of the provisions of the statute should file the statement.\u201d The decree is reversed and the cause- remanded.",
        "type": "majority",
        "author": "Mr. Justice Sample"
      }
    ],
    "attorneys": [
      "Appellant\u2019s Brief, H. C. Goodnow and L. M. Kagy, Attorneys.",
      "T. E. Merritt, attorney for appellee."
    ],
    "corrections": "",
    "head_matter": "John Whitlow v. Newton Champlin.\n1. Mechanics\u2019 Liens.\u2014Proceedings to Enforce.\u2014The proceeding to enforce a mechanic\u2019s lien is statutory and the provisions of the statute must be complied .with in order to give the court jurisdiction.\n2. Mechanics\u2019 Lien\u2014Filing Statement in the Office of the Circuit Cleric.\u2014The filing of the statement in the office of the circuit clerk as required by Sec. 4 of Ch. 82, R. S. entitled \u201c Liens,\u201d is a prerequisite to the right to file a petition to enforce the lien, and necessary to give the court jurisdiction.\nMemorandum.\u2014Mechanic\u2019s lien. Appeal from the Circuit Court of Marion County; the Hon. Benjamin R. Burroughs, Judge, presiding.\nHeard in this court at the August term, 1893.\nReversed and remanded.\nOpinion filed March 23, 1894.\nStatement of the Case.\nThe appellee contracted with appellant for the construction of a dwelling house on the latter\u2019s premises. He furnished the labor and material necessary for that purpose. Hot being paid therefor, he filed a petition to enforce his lien under the mechanic\u2019s lien law. The defense interposed is: 1. A failure to comply with the contract in workmanship and in the kind of material furnished. 2. That appellee failed to file with the clerk of the Circuit Court of the county in which the dwelling house was situated, any statement of account, etc., verified by affidavit, as required by the amendatory act of 1887. The latter point alone is presented for our consideration. Ho separate statement of account, as provided by section 4, was filed with the circuit clerk prior to the time of filing the petition.\nThe petition was filed in the Circuit Court on the 7th day of October, 1892, to which were attached exhibits \u201c A\u201d and \u201cB.\u201d\nExhibit \u201c A \u201d is e\u2018 copy of specifications for -I. M. Whit-low\u2019s house, 18x26; main building 16x22; add. main building, roof -y- pitch; porch, 16 feet; ceiling, 9 feet down stairs; addition,\u2019 9 foot ceiling, etc.\u201d Exhibit \u201c B \u201d is \u201c Extras ordered by J. M. Whitlow.\u201d\nAt the conclusion of exhibit B is the following:\nState of Illinois, ) Marion County, j *\nHewton Champlin, being duly sworn, deposes and says on oath, that the foregoing statement of his account is true and corre\u00f3t, and that the sum of $711.83 is still due him after allowing all credits from John \"Whit-low, on account of carpenter work, building and furnishing material under original contract, and also for extra material and work mentioned in the above account.\nNewton Champlin.\nSubscribed and sworn to before me this 6th day of October, 1892. T. P. Meagher,\nCircuit Clerk.\nExhibit A has no date. At the conclusion of the specifications is the following: \u201c $618.15 to be paid, cash, when completed. One or two hundred dollars to be advanced if desired.\u201d\nExhibit B contains the itemized value of the material furnished and of the work done, but gives no dates.\nNeither exhibit contains a description of the property to be charged with the lien. The petition itself sets out the contract, its date, terms, etc., the description of the property, alleging a compliance with the contract, the furnishing of extras, etc.\nAppellant\u2019s Brief, H. C. Goodnow and L. M. Kagy, Attorneys.\nThe statute which gives a mechanic\u2019s lien is in derogation of the common law and must receive a strict construction. No person can obtain a lien under it, unless a clear compliance is shown with all the requirements of the statute. Belanger et al. v. Hersey et al., 90 Ill. 71; Butler & McCracken v. Gain, 128 Ill. 27.\nMechanics\u2019 liens are entirely the creation of statute and are controlled absolutely by the provisions, requirements and conditions of the law which creates them. Swift v. Martin, 20 Ill. App., 515.\nThe filing of a statement of account or demand verified, is a condition precedent to the right to a lien, and a failure to comply with the requirements of the statute in that respect prohibits the enforcement of the lien. This verified statement filed with the clerk of the Circuit Court, is jurisdictional. McDonald v. Rosengarten, 35 Ill. App. 71; McDonald v. Rosengarten, 134 Ill. 126; A. R. Beck Lumber Co. v. Halsey, 41 Ill. App. 349.\nT. E. Merritt, attorney for appellee."
  },
  "file_name": "0644-01",
  "first_page_order": 640,
  "last_page_order": 644
}
