McClurken v. Logan

Breese, J. A great number of errors have been assigned as existing in the record in this cause, which we do not deem necessary to notice in detail, the whole of them being released by one of the plaintiffs in error, and most of the errors as affecting the other plaintiff in error, Lucas, being waived by the proceedings in the cause originated by himself. There is one error, which, in accordance with previous rulings of this court, must be considered as fatal. It is the second error assigned, “ Because the said court overruled the demurrer of the plaintiff in error, Lucas, to the petition filed.” By an inspection of the record it will be seen that, on a decision by the court overruling the demurrer to the petition, the defendant abided by the demurrer, and a reference was at once made to the master to take testimony and report the amount due. A paper purporting to be an answer of the demandant, is among the papers in the cause, but it was not sworn to nor treated as an answer by the court or parties, so that the decision of the court upon the demurrer becomes the question for consideration here. The proceeding to enforce a mechanics’ lien is statutory altogether, in derogation of the common law and of common right. The lien must grow out of a contract limited as to time, both for its performance by the mechanic, and the payments by the emplbyer, and the furnishing materials or labor under it. The statute so provides, and we have uniformly held unless the petition shows upon its face there was such a contract as is treated of in the statute, to be performed within three years, and the payments to be made within one year thereafter, no lien exists which this court can enforce. It is unnecessary to recapitulate the arguments of the cases so lately decided, or to attempt to add to their force. The cases of Cook v. Heald, 21 Ill. R. 425 ; Cook v. Vreeland, ib. 431, and Senior v. Brebnor, 22 ib. 252, are full to the point, and are in this respect like the one now before us. The decree is reversed, and the cause remanded, with leave to amend. Decree reversed.