Bush v. Connelly

Mr. Justice Breese delivered the opinion of the Court: Without passing upon the propriety of setting aside a decree duly entered at one term, on the mere motion of the court at a subsequent term, it is sufficient to a proper disposition of the case to say, that the original decree is in several respects erroneous, and should be reversed. In the first place, the complainants by their own showing have no community of interest in the subject matter of the suit. Their interests have been severed by the settlement of the building accounts, and the indebtedness distributed among the contractors, and separate notes executed to the separate parties for the respective amounts due. By the complainants’ own showing, Eller has no interest in the note executed to Bush & Benhart, nor have they any interest in the note executed to Eller. They are separate and independent claims, and should have been sued for separately. No joint interest is shown, and consequently, the demurrer should have been sustained. Sutherland et al. v. Ryerson, 24 Ill. 517. The parties here do not show they are jointly entitled to a lien on the premises, but the contrary. In the next place, the contract for joiners’ work as alleged is different from the contract proved. It is alleged in the petition that the work was to be paid for when fully completed, whereas the proof is, it was to be paid for by the twenty-seventh of December, 1858, as recited in the decree. It is a settled rule in all cases, that the allegations and proofs must agree; a party cannot make one case by his pleading and another by his evidence, and recover. Rowan v. Bowles et al., 21 Ill. 17, and cases there cited. In the last place, the decree is erroneous because it directs a sale of the premises in thirty days. This court has repeatedly held, that under the mechanics’ lien law when there is no redemption from a sale, less than ninety days should not be prescribed for the sale, in analogy to the life of an execution. In the case of Link v. Architectural Iron Works, 24 Ill. 553, this court said: “In no case should the sale be ordered at a shorter period than the lifetime of an execution at law. The same rule is furnished in Straion v. Cogswell, 28 id. 457. The decree is reversed and the bill dismissed, and the defendants’ abstract to be taxed as costs against the complainants and plaintiffs in error. Decree reversed.