Whitlow v. Champlin

Mr. Justice Sample delivered the opinion of the Court. The section referred to in the statement provides that “ Every creditor or contractor who wishes to avail himself of the provisions of this act, shall file with the clerk of the Circuit Court of the county in which the building * * * is situated, (1) a just and true statement of account or demand due him after allowing all credits, (2) setting forth the times when such material was furnished or labor performed, (3) containing a correct description of the property to be charged with the lien, (4) and verified by anaffidavit. Any person having filed a claim for a lien as provided in this section, may bring a suit at once to enforce the same by bill or petition in any court of competent jurisdiction in the county where the claim for a lien has been filed.” The proceeding to enforce a mechanic’s lien is statutory, and as frequently decided, the provisions of the statute must be complied with in order to give the court jurisdiction. Butler et al. v. Gain, 128 Ill. 23, and cases there cited. The position of the appellee is, that the filing of the petition with the exhibits attached, sworn to, is a compliance with the statute, and that it is not necessary to file a separate claim prior to the filing of the petition. In view of the decisions of the court, as well as the language of the section referred to, we are constrained to take a different view and hold that the filing of such claim in compliance with said section is a prerequisite to the right to file a petition to enforce the lien or to give the court jurisdiction. The section is very explicit in providing that if the “ creditor or contractor wishes to avail himself of the provisions of the act, he shall file with the clerk a just and true statement of account,” etc. Then it further provides, as if to leave no doubt of the purpose of the legislature, “ Any person having filad a claim, for a lien * * * may bring a suit at once.” Clearly by this language the bringing of the suit must be preceded by filing a claim “ as provided in this section.” It has been contended, however, that sections 4 and 28 should be construed together, as, in effect, one section, in which case it is insisted the filing of a claim with the clerk of the Circuit Court is only required as to other creditors, incumbrancers or purchasers. There is much force in this construction, if it is assumed the purpose of the requirement was merely to protect the interest of third parties, as creditors, incumbrancers, or purchasers. But evidently the legislature intended by Sec. 4, to make such provision apply for the benefit of the owner as well. By this requirement the owner is furnished with definite information of the extent and particular character of the claim, which can not be shifted, changed or enlarged; in other respects the requirements may also be beneficial to the owner. Had it been intended to apply solely to third parties, and to the exclusion of the owner of the property, different language would have been used. To exclude owners from the benefit of the provisions of section 4 by construction, would apparently be doing violence to the plain meaning of words. This court in the case of Boals v. Dutrup, 40 Ill. App. 62, said with reference to Secs. 4 and 28: “ These sections being construed together do not obviate the necessity of filing the verified statement provided for in Sec. 4.” In the case of Campbell v. Jacobson et al., 145 Ill. 389, it is said, with reference to the effect of Sec. 28 on Sec. 4, that “ It has not the effect of dispensing with the filing of the claim, where the lien is sought to be enforced only against the owner of the premises.” “ There is nothing giving countenance to that view in the language of section 4, its provisions being, that every creditor or contractor wishing to avail himself of the provisions of the statute should file the statement.” The decree is reversed and the cause- remanded.