Malkov Lumber Co. v. Serafine Builders, Inc.

EBERSPAGHER, P. J„

dissenting:

I do not agree that consolidation of the numerous claims under the Mechanic’s Lien Act, after the time limitation of that Act as set forth in section 9 of the Lien Act has passed, is authorized by section 51 of the Civil Practice Act, which authorizes consolidation “whenever it can be done without prejudice to a substantial right”. To so hold ignores the numerous holdings that the time fixed for commencing an action under the Lien Act is a condition of liability itself, and not of the remedy alone. North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 129 N.E.2d 273. Muehlfelt v. Ulcek, 112 Ill.App.2d 190 @ 193, 250 N.E.2d 14; Anderson v. Goussett, 60 Ill.App. 309, 208 N.E.2d 37. These holdings make it clear that failure to file a complaint in conformance with section 11 of the Act, or failing to bring the proper parties in within the limitation of section 9, involves something substantive, rather than a procedural question.

In Grandquist v. Western Tube Co., 240 Ill. 132, 88 N.E. 468 our Supreme Court considered the language of section 11 and stated: “When the language * * * is considered in connection with other provisions of the act giving the court general power to adjust all conflicting claims to the property and adjusting the equities between the several persons holding or claiming liens therein, we are forced to the conclusion that the Legislature never contemplated there would be separate suit by each contractor or sub-contractor for the purpose of having a lien established in his favor, but that the statute contemplates but one suit, and that all persons who are known to have any interest either legal or equitable, in the land, or any claim for a lien against it, should be joined, either as complainants or defendants, in such suit, so that the court will be able to adjust all equities and render a decree in relation to the distribution of the proceeds, in case a sale is had, according to the rights of the several documents. If appellee’s position is sustained, it is easy to see how the owner may be harrassed with numerous suits for liens, thereby unnecessarily increasing the costs and expenses to the owner and imposing a large amount of unnecessary litigation upon the courts.”

Our Supreme Court has never seen fit to modify the holdings in either North Side Sash and Door, Grandquist, nor the Appellate cases cited. While the Grandquist case was remanded for joinder of proper parties, it is quite clear from the opinion that dismissal for non-joinder was not raised in the lower court in that case.

I do not consider that the reversal by the Supreme Court of Nupnau v. Hink (1965), 33 Ill.2d 285, 211 N.E.2d 379, has any relevance to the matter under consideration in Anderson v. Gousett, and both the Second District and this First District has declined to follow Nupnau in subsequent lien cases while relying on Anderson v. Goussett. See Muehlfelt v. Ulcek, 112 Ill. App.2d 190, 250 N.E.2d 14 (2nd Dist, 1969); and Rochelle Building Co., Inc., v. Oak Park Trust & Savings Bank, 121 Ill.App.2d 274, 257 N.E.2d 542 (1st Dist., 1970) in which a subcontractor who had been named defendant in a foreclosure suit commenced within the two year limitation failed to file his counterclaim within that period; in holding the subcontractor, who like the various claimants here had been made a party to another proceeding before the same court and his claim stated within the two pear period, had lost his right to a mechanic’s lien. In so holding reliance was placed on the Anderson, North Side Sash 6- Door and Muehlfelt cases.

The case of Park Ave. Lumber & Supply Co. v. Nils A. Hofverberg, Inc., 76 Ill.App.2d 334, 222 N.E.2d 49 (1986) is factually not comparable to the present case, and it is quite clear from the Court’s own language in that case that there in the original action Hofverberg, Inc. was defaulted and relief was granted against Hofverberg, Inc. that was not prayed for in the original action. From such holding Hofverberg, Inc. petitioned under section 72 of the Civil Practice Act, and the order granting the affirmative relief against Hofverberg, Inc. was vacated. This court in that opinion, made clear by its own language early in the opinion, what the issue was when at 76 Ill.App.2d 337 it said: “The principal issue is whether it is proper in a proceeding under Sec. 72 to modify a decree which has granted relief against a defaulted defendant far beyond that prayed for in the complaint.”

Counsel for applicants in that case were held to have a duty to disclose Hofverberg, Inc.’s interests and status in the court because they proposed and submitted the decree both defaulting Hofverberg, Inc., as well as some of their own clients, and granting relief against Hofverberg, Inc. which was not prayed for in the complaint.

In the present case, counsel made known to the court, by affidavit, the interests and claims of the various parties, and their conduct in a direct attack in the proceedings is not comparable to the conduct of counsel, or the factual situation presented in the Park Ave. case on which the majority relies.

Here the Receiver-Defendants had the fundamental obligation to protect the assets of Marshall Savings and Loan Association for the benefit of the innocent depositors of the Association, and such a fiduciary obligation obviously does not include their doing what the Lien Act provides claimants should do if they wish to claim liens.

As a result I conclude that the fib eral provisions of our Practice Act for consolidation do not purport to authorize consolidation that would be effective as against a plea of limitation from the beginning of the original suit and should not be allowed to be exercised to deprive a defendant of that defense, and that the trial court was correct in vacating the consolidation order, which had been entered in his absence on a motion made after the limitation had expired, and which was entered “without prejudice of the matters raised in the briefs of the parties now pending before this Court”. The matters raised in the briefs referred to, concerned the question of dismissal raised by the motion to dismiss supported by the uncontradicted affidavit, on the basis that necessary parties had not been joined during the two year period.

Defendants possessed no knowledge that was not readily available to the claimants, and the Lien Act requires claimants to take the initiative in bringing the necessary parties into the action, and under the strict construction required in substantial matters the Act should not be said to place the burden of taking the initiative on those whose fundamental obligation is to protect the assets of the owner for the benefit of innocent depositors.

Claimants did not join all necessary parties nor did they intervene in a suit already filed which joined all necessary parties within the time period, and are hardly in a position to urge that defendants should have done, what they failed to do and what the Act requires them to do. I know of no holding, and none is cited, to the effect that a proceeding to foreclose a lien is not an adversary proceeding. I would therefore affirm.