120 Ill. 488 | Ill. | 1887
delivered the opinion of the Court:
We are of opinion the demurrer was rightly sustained to the petition to proceed no further in the suits, but to dismiss them. The statute relating to liens provides for a mechanic’s lien in favor of a sub-contractor, as well as in favor of the original contractor. Section 42 of the act is as follows: “Upon entering into a contract to do any work or furnish materials for which a lien might accrue, under section 1 of this act, if the contractor will enter into a bond with the owner, for the use of all persons who may do work or furnish materials pursuant to such contract, conditioned for the payment of all just claims for such work or materials as they become due, (which bond shall be in such an amount, not less than the price agreed to be paid for the performance of such contract, and with such surety as shall be approved by the judge of the circuit court, or a master in chancery of said court,) and shall file the same in the office of the clerk of said court, then no lien-shall attach in favor of such sub-contractor, mechanic or other person. ” Section 43 is: “A like bond may be made and filed as provided in the foregoing section, at any time after the making of such contract, and shall have the effect to discharge all such liens as shall have accrued before the filing thereof, and to prevent the accruing of any such liens thereafter. ”
It is insisted that the bond provided for in this 43d section should be made and filed before the institution of a suit to enforce the lien. But that certainly is not the reading of the section. It says, plainly, the bond may be made and filed at any time after the making of the contract. There is no ambiguity here, and the words used must have their natural meaning, unless some absurd or injurious consequence would result which the legislature manifestly could not have intended. There is nothing of that sort here. The rule is, that if the statute is plain and unambiguous, there is no room for construction,—that it is not allowable to interpret what has no need of interpretation. Sedgwick on Stat. and Const. Law, 231, 227.
If it were the consequence of giving the bonds that there must be dismissal of the suits, and all that had been done in them become of no effect, to avoid such an inconvenient result there might be some justification for the construction claimed, that the bond should be filed before suit brought for enforcement of the lien. There had been, here, a protracted litigation over the amounts which were due. There was a receipt in the case giving rise to a severe contest as to its forgery. Many witnesses had been examined on both sides, a large amount of time consumed, and large expenditures incurred. The trial had been had and concluded, but- the decision not announced. That all this should have been in vain, and go for nothing, would be a most injurious result. We do not think that was a necessary result. The suit was instituted to enforce a security on real estate,—a lien. In place of this, there became substituted another security,—the bond. To the enforcement of either security, there was necessity for determination of the same question of the amounts due.
The inquiry in that respect, which had been prosecuted to enforce the security of the lien, we think, might, after the giving of the bonds, be continued in its prosecution to the end, for the purpose of fixing the amounts due in aid of the enforcement of the security of the bond, when that should be sought, so that when suit came to be brought upon the bond the amounts due would have already been ascertained and declared, and there would not be need, in this respect, to go over again, and relitigate anew what had been litigated to such an extent in the lien suit before the bond was filed. We think the court did right in refusing to dismiss the suits, and in proceeding to find and declare the amounts due, but that there was error in rending a decree in personam, and in decreeing a lien. The proceeding to establish a mechanic’s lien is a statutory one, and must be governed by the provisions of the statute. The law does not contemplate that in such a proceeding there shall be any decree in personam, except where there has been establishment of the lien, and decree for the deficiency after sale made of the subject of the lien. The statute is explicit, that the bond shall have the effect to discharge the lien, and the decrees should have allowed' it the effect which the statute declares it shall have.
It is said, that the lien only concerns the owners; that they have not appealed, and that Swift, the contractor, can not be heard to make objection on account of the decree of the lien, because he is not prejudiced by the lien. We think the discharge of the lien is for the benefit of the contractor, as well as the owner. While the lien remains, the fund due the contractor is locked up,—held in the hands of the owner, to be paid to the sub-contractor, if found entitled to it. It is the contractor’s interest that the fund be not so held; that it shall be free to be paid over to him, and to admit of any dealing between himself and the owner which they may desire to have, unembarrassed by the lien. We deem Swift to have sufficient interest in the matter of decreeing a lien, to entitle him to make objection on account of it.
We agree with the Appellate Court that there was no error' in refusing to dismiss the suits, and that there was error in decreeing a lien. In its opinion, which we have before us, that court only considers and passes upon these two assignments of error, saying it was unnecessary to consider other errors assigned, and that the decrees must be reversed, and gives judgment accordingly. It did not follow, from the error in decreeing a lien, that the decrees must be reversed entirely, but only that they should be reversed in part, in so far as they decreed liens. The other errors assigned, among which is one as to the amounts found due, were never, in fact, considered or passed upon by that court, and yet it, in effect, sustains that assignment of error by reversing the decrees wholly. Had the cases gone back to the trial court, there would had to have been re-trial there of the issues as to the amounts due, when there had been no determination by the court of review that the former finding on those issues was erroneous. And as it now stands, there is no finding as to amounts due, and in a suit upon the bond there would have to be the same re-trial of those issues.
In order to a reversal of the decrees entirely, we think the other errors assigned, or at least the one as to the amounts due, should have been considered and passed upon by the Appellate Court.
The judgment of that court will be reversed, and the causes remanded for further proceedings there, conformable to this opinion.
Judgment reversed.