36 Ill. 214 | Ill. | 1864
delivered the opinion of the Court:
This was a proceeding to enforce a mechanics’ lien. A number of persons claiming similar liens on the same property, were made parties to the suit, and others filed bills of interpleader, claiming to hold liens for labor performed or materials furnished for the erection of the mill. On the hearing in the court below, a decree was rendered in favor of complainants in the original bill, declaring the existence of a lien on the property described in the bill, and awarding execution on default of payment within ninety days. It does not appear from the record in this case, that any disposition was made of the claims of the other parties asserting liens on the premises, and a right to share in the proceeds of the property when sold. For a.ught that appears from this record the cause may still be pending as to all of the parties except defendants in error, who were complainants in the original bill, whose claims were heard and a decree rendered as though no other claims had been asserted.
It is urged as a ground of reversal, that the contract for the materials furnished did not specify the lot of ground upon which they were to be placed. The statute provides, that if any person shall contract with the owner of any piece of ground, to furnish labor or materials for erecting or repairing any building or appurtenance to any building on such land, he shall have a lien upon the whole tract of land upon which the erection is made. The evidence shows that the machinery furnished by complainants was put upon this land, and that it was contracted for with the purpose of being used in the building being erected upon the same. It was stated at the time the contract was made, that it was to be used in the building then being erected, and the proof shows that plaintiffs in error were not engaged in building any other mill. Prom this evidence the jury could not have done otherwise than find that it' was contracted for, to be placed in the building on the land in controversy. But if it had only appeared that the machinery had been used in this mill, they might have inferred that it was purchased for that purpose.
It is again urged, that the court erred in permitting Eversal, who was a defendant, and had filed his bill of interpleader, to give testimony on the trial. In chancery it is a rule, that the complainant may examine a defendant as a witness if not otherwise disqualified. In this case there is nothing from which it appears that the witness had any disqualifying interest in the issue then being tried. It is true that he may have had an interest in the fund, but if so, his interest was adverse to that of the complainants who called him. He was claiming a lien on the same property, and if it was insufficient in value to pay all the liens, then his interest was to defeat the lien of complainants, and thereby increase the fund for the payment of his claim. And the rule is well recognized, that a party may call a witness whose interest is adverse to that of the party calling him. We are therefore of the opinion that his evidence was properly received. But the answer being under oath his testimony would not overcome any denial in the answer responsive to the bill. If there were such denials in the answer, it would of course require the evidence of two witnesses, or one, and corroborating circumstances equal to another, to disprove them.
It is, however, manifest that the court below erred in failing to dispose of the claims of all the parties before the court They were properly in court, and were asserting their claims. The pleadings were all made up, the issues formed, and the cause was ripe for a hearing, on the original bill, the interpleaders, the answers and replications. We are unable to perceive any reason why they should not all have been tried. The tenth section of the act creating the lien declares, that all persons interested in the subject-matter of the suit, or in-the premises sought to be sold, may, on application, become parties at any time before final judgment. The twelfth section declares, that upon the trial of causes, under the provisions of that chapter, the court shall ascertain the amount due each creditor and shall direct the application of the proceeds of sales, to be made to each in proportion to their several amounts.
These provisions are ■ peremptory, and the court on the trial must ascertain the sum due to each claimant before a decree is rendered directing the sale of the property, and the application of its proceeds to the claimants in proportion to the amount found due to each, if not sufficient to pay all of their claims. It may be, and perhaps is, the better practice to impanel a jury to pass upon and find the amount due each claimant, as though there were separate proceedings. But where there are but few parties and the claims are not complicated, no objection is perceived to submitting the whole case to the same jury. But a final decree, ordering the sale of the property, should not be rendered until the sum due each of the claimants is ascertained. Then their several rights should be declared in the decree, and the property sold, if payment is not made by the day fixed in the decree, to satisfy the sums due to the several claimants. In this case the decree was premature, and should not have been rendered until the sums due each claimant had been found. The decree must therefore be reversed, and the cause remanded, with directions to the court below to proceed and to try such other claims as have not already been disposed of, and ascertain what is due to each claimant, and then to render a decree in conformity to the rules announced in this opinion. .
Decree reversed.
