Wells v. Murphy, 126 Ill. App. 103 (1906)

April 10, 1906 · Illinois Appellate Court · Gen. No. 12,185

126 Ill. App. 103

Arthur B. Wells et al. v. Richard J. Murphy.

Gen. No. 12,185.

Í. Writ of error—when will be dismissed in meahanie’s lien proceeding. A writ of error sued out to review a decree rendered in this case in a mechanic’s lien proceeding is dismissed upon the authority of Scott v. Great Western Coal Company, 220 Ill. 42.

Mechanic’s lien proceeding. Error to the Superior Court of Cook County; the Hon. Theodore Bremtano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.

Writ of error dismissed.

Opinion filed April 10, 1906.

Statement by the Court. This is a writ of error sued out by Arthur B. W ells, personally and as trustee, Frederick L. Wells and Luda Wells, three of the defendants to a petition for a mechanic’s lien filed in the Superior Court by Joseph Sherwin and Joseph Murphy, partners, as Joseph tiherwin & Co. The defendants to the original petition were Frederick C. Wells, the owner of the premises upon which a lien was claimed; Clara L. Wells, his wife; E. Ware Kendall, a lessee of said premises who contracted with petitioners to erect a building on said premises, with the knowledge and authority of Frederick C. Wells, the owner thereof; Arthur B. Wells, the trustee, in a trust deed in the nature of a mortgage executed by Frederick C. Wells upon said premises; Mary Sullivan, the holder of the notes or a part of the notes secured by said trust deed, and the unknown holders of said notes. A decree in favor of petitioners was rendered July 14, 1896. From this decree the defendants, Clara L. Wells and Arthur B. Wells, trustee, appealed to this court, where the decree was reversed and the cause remanded. Wells v. Sherwin, 92 111. App. 282.

While the former appeal was pending in this court Frederick C. Wells died intestate, leaving him surviving as his heirs at law, his children Frederick L., Arthur B., Walter A. and Luda Wells and Clara W. Goodridge. Subsequently Clara W. Goodridge died intestate, leaving her brothers and sisters above named, her mother and her husband, Albert E. G. Goodridge, her heirs at law; after her death her mother, Clara L. Wells, died, leaving her children above- named her heirs at law. The deaths of said defendants were suggested and Arthur B., Frederick L., Walter A. and Luda Wells and Albert E. G. Goodridge were made defendants to said petition, and Frederick L., Arthur B., Walter A. and Luda Wells filed an answer.

John M. Blakeley, for plaintiffs in error.

Goldzier, Bodgees & Froehlich, for defendant in error.

Me. Justice Baker

delivered the opinion of the court.

The defendants in the cause, January 14,1905, when the decree was rendered which it is sought to review upon this writ of error, were Frederick L., Arthur B., Walter A. and Luda Wells, four of the children and heirs at law of Frederick C. Wells, deceased, who was the owner of the premises upon which a mechanic’s lien is sought to be establiskecl by this proceeding when the building in question was erected thereon; Albert E. Gf. Good ridge, the surviving husband of Clara A. W. Goodridge, a deceased ■ daughter of Frederick C. Wells, who died after the death of her father; E. Ware Kendall, the lessee of the premises in question, from Frederick C. Wells and who made the contract with petitioners to erect said building; Arthur B. Wells, the trustee, in a trust deed in the nature of a mortgage executed by Frederick C. Wells upon said premises; Mary Sullivan, the holder of the notes or a portion of the notes secured by said trust deed, and the unknown holders of the notes secured by said trust deed.

The decree establishes a lien in favor of defendant in error, the survivor of the original petitioners; finds the amount due to him; orders that in default of the payment of such amount the premises be sold; finds the value of the premises at the time the contract for said building was made and the amount such value was enhanced by reason of such improvement; determines the proportions in which the funds arising from such sale shall be divided between defendant in error and the holders of the notes secured by said trust deed, and finds that E. Ware Kendall is liable to defendant in error personally, for the amount so found due to defendant in error, and directs that an execution issue against him for the deficiency, if any, in such amount remaining after the sale.

The writ of error is not sued out by all of the defendants, nor even by all of the defendants who are heirs at law of the original defendant, Frederick O. Wells. It is sued out only by Arthur B. Wells, personally, and as trustee, Frederick L. Wells and Luda Wells.

The defendants, their brother Walter A. Wells, Good-ridge, the husband of their deceased sister, Kendall, their father’s lessee, Mary E. Sullivan and the unknown holders of the notes secured by the trust deed to Arthur B. Wells, do not join in the writ of error. For this reason, upon the authority of Scott v. Great Western Coal Co., 220 111. 42, and cases there cited, the writ of error will be dismissed.

Writ of error dismissed.